Category Archives: Labor Laws/Legislation

Whistle Where You Work? The Ineffectiveness of the Federal Whistleblower Protection Act of 1989 and the Promise of the Whistleblower Protection Enhancement Act of 2012

Source: Shelley L. Peffer, Aleksandr Bocheko, Rita E. Del Valle, Allmir Osmani, Shawn Peyton, and Edna Roman, Review of Public Personnel Administration, Vol. 35 no. 1, March 2015
(subscription required)

From the abstract:
The Whistleblower Protection Act (WPA) of 1989 was enacted to provide protection to employees who report wrongdoing on the part of their employers. This study analyzed whether the provisions in the WPA actually protect federal government employees from retaliation by their federal government employers. The research focused on a legal analysis of federal employee WPA claims litigated in federal court. Furthermore, within those cases, the claims were separated by issues—national security, environmental issues, and government ethics—to get a fuller understanding of WPA issues. The findings of the analysis suggested that the WPA did not provide adequate protections for employees. Out of 151 appellate cases that were identified and reviewed in the study, 79% of cases were ruled in favor of defendants—federal agencies. Out of 142 cases involving government ethics and administration issues, 79% of cases were lost by employees. In issues involving the environment, 100% of cases resulted in a loss for employees. Out of four cases involving national security, 75% were lost by federal employees. The results lead to the conclusion that either the WPA as written or the manner in which courts are interpreting the WPA is not consistent with the intent of the legislation—to protect employees. The article further analyses the Whistleblower Protection Enhancement Act (WPEA) of 2012 and whether it cures the defects in the WPA. The analysis shows that the WPEA may not live up to its promise.

Meta Rights

Source: Charlotte Garden, Fordham Law Review, Vol. 83 Issue 2, 2014

From the abstract:
Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights” — rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well — among them, the First Amendment right of individuals represented by public sector labor unions and bar associations to notice of their right not to subsidize certain union or bar association speech. Certain procedural due process rights also qualify as meta rights, including the notice of the right to litigate individually to which many class members are entitled.

The reason for the Miranda warning, as well as for similar notice rights in the procedural due process context, is clear: each aids individuals in overcoming high external barriers to protecting their own rights through self-help. But what justifies meta rights that help union members and attorneys exercise their rights against compelled subsidization of political speech, where there are generally no significant barriers to self help? Alternatively, why aren’t there meta rights in other compelled speech and subsidization contexts? And, if meta rights are appropriate, how robust should they be?

This Article take up these questions, arguing that the self-help rationale offers a way to determine when meta rights are required in various constitutional contexts, including in the context of compelled speech and subsidization of speech. It then addresses the challenges inherent in structuring meta rights, which are accentuated where meta rights are owed by private associations — such as unions and bar associations — that have their own First Amendment rights. Ultimately, the Article argues that courts cannot ignore the competing interests of associational speakers and willing members when they determine the scope of compelled speech and subsidization meta rights. Thus, to the extent that courts conclude that meta rights themselves implicate the First Amendment, they should account for the possibility that some meta rights do more than just allow dissenters to avoid unwanted speech: they actually encourage opt-outs, and correspondingly discourage speech.

Beyond Unions, Notwithstanding Labor Law

Source: Marion G. Crain, Kenneth Matheny, Washington University in St. Louis Legal Studies Research Paper No. 15-01-03, January 13, 2015

From the abstract:
In this Article, we ask what vehicles for worker advocacy and representation at a collective level are most likely to support a healthy democracy and a more just distribution of wealth, and (notwithstanding the NLRA) what legal architecture will nurture them. Our answer to the first question is “many mechanisms.” The best hope for a revived labor movement appears to lie with new actors such as workers’ centers, community and occupational groups, and identity caucuses that can work in partnerships with established unions; class action plaintiffs’ firms dedicated to enforcing workplace rights; and government agencies and attorneys general. The experience of these groups with law thus far is instructive because it signals hostility to group rights and collective action in the workplace context beyond labor law. Accordingly, reforming labor law will not be sufficient. A bolder approach is necessary. On the second question, then, we contend that more robust constitutional protection for group action in its many forms is essential to create breathing space for worker mobilization. That protection can and should be founded upon the First Amendment freedom of assembly. Relying on a vigorous body of First Amendment scholarship that emphasizes the role that assembly rights have played in our constitutional tradition, we offer a preliminary sketch of how reframing labor rights as assembly rights might expand legal protections for labor unions and other worker advocacy efforts, and shore up democracy in the process.

Our argument proceeds in four parts. Part I treads ground familiar to labor scholars, describing the role that judicial hostility to group action has played in cabining group rights in the labor law context. Part II describes the new vehicles for collective worker activism that have developed to fill the gaps left by the decline of conventional unions, and assesses the law’s response to their strategies. We explain how law has been hostile to collective action by workers even where unions and labor law are not involved. This hostility is manifested most starkly in a recent series of decisions from the Supreme Court narrowing the availability of class claims by workers in workplace-based litigation and arbitration. Because class claims may play a critical role in the formation of group identity, these developments stifle nascent forms of worker activism. Part III contends that a new legal frame is essential to support group rights, and looks to a revitalized First Amendment right of assembly. Part III also discusses the implications of this reframing, explaining why the new frame is vital to a healthy democracy. Part IV outlines how such a frame might alter the existing labor law regime.

Reframing labor rights as assembly rights would offer modern unions and other worker advocacy groups a new rhetorical tool in the struggle to win hearts and minds. Constitutional rights are accessible to the public and to workers in a way that statutory mandates are not. Thus, they are more likely to be effective in the crusade to rebrand labor unionism. Unions, worker centers, and other advocacy groups should consider appealing to the public to support the constitutional right to assembly in the context of rallies, pickets, boycotts, demonstrations, and social media appeals designed to advance workers’ rights. They might reform their marketing strategies, including websites, publicity, handbills, and other mediums to foreground assembly rights. Further, the constitutional stature of the assembly right could ground serious challenges in court to portions of the labor law that hamstring both unions and new forms of worker advocacy groups, particularly restrictions on picketing, secondary boycotts, the strike weapon, and group litigation conducted as part of an organizing drive. It might also, however, ground challenges to parts of the statute that labor holds dear, including exclusive representation and the ban on company unions.

First Impressions: Comparing State Paid Family Leave Programs in Their First Years – Rhode Island’s First Year of Paid Leave in Perspective

Source: National Partnership for Women & Families, Issue Brief, February 2015

Family caregiving is a major challenge for millions of Americans. Today, more than 30 million working families include young children, nearly four million children are born each year, and more than 25 million people with paying jobs also provide unpaid care to loved ones every year.

Yet the majority of working people in the United States cannot take time away from their jobs to welcome new children or care for their loved ones without risking loss of their jobs or their economic security because they do not have access to paid family leave.

Three states – California, New Jersey and Rhode Island – have sought to change this by putting in place public policies that respond to working families’ need for paid family leave. These states’ programs insure workers for a share of their usual wages while they take time away from their jobs to care for a family member with a serious health condition or to bond with a new child. Each of these states’ paid family leave insurance programs build upon longstanding state temporary disability insurance programs that workers can use to take time away from their jobs to address their own serious health issues, including preparing for or recovering from childbirth. California’s and New Jersey’s paid family leave programs have insured workers since 2004 and 2009, respectively. Rhode Island’s program just celebrated its first anniversary. This analysis draws on program utilization data from each state to assess workers’ use of paid family leave in the first year of each program’s operation. The analysis provides useful insights into the most common reasons people take leave, and a window into the gender dynamics of leave taking.

How Bruce Rauner Could Weaken Public Unions Nationwide

Source: Daniel C. Vock, Governing, February 11, 2015

Illinois’ new Republican governor wants the U.S. Supreme Court to reconsider the constitutionality of public-sector unions’ funding sources. …. The plan involves bringing a case before the U.S. Supreme Court in an attempt to have the court declare that public employees cannot be required to participate in a long-standing feature of collective bargaining. Several conservative justices on the high court seemed eager to do that last year, but ultimately left the question unresolved. Rauner’s strategy could unravel before it gets to the high court, because of significant legal and political obstacles in the way. …. The justices are expected to vote on whether to hear the California case, called Friedrichs v. California Teachers Association, in the next few weeks. If the court adds the case to its docket, it would likely be decided by June 2016. Meanwhile, Rauner’s actions face other challenges back in Illinois. … The executive order that accompanied the lawsuit could also be rescinded by a majority vote in either chamber of the Democratically controlled General Assembly, if lawmakers first determine it contravenes state statutes or reorganizes government….
Related:
Illinois Gov. Signs EO Banning Fair Share Fees
Source: Benjamin Sachs, OnLabor blog, February 9, 2015

To Check Power of Greedy Bosses, Workers Need to Bargain in New Ways

Source: Sarita Gupta, American Prospect, February 6, 2015

When workers’ power is diminished and people’s voices are shut out of the workplace, job quality and job standards suffer. …. A century ago, we were fighting for overtime laws and workplace safety standards. Today, the battles look a little different, but they’re no less important. If we’re getting up and going to work every day and still living on the brink—still wondering when we can squeeze another shift in or whether or not we can take a day off to care for a sick child—then we have to spend some serious time thinking of better ways to make sure working in this country actually provides people with a pathway to a better life. ….

Malpractice by the Labor Movement: Relinquishing the Fight for Occupational Health and Safety in California

Source: Garrett Brown, New Labor Forum, Vol. 24 no. 1, January 2015
(subscription required)

An underlying theme of California’s most prominent union organizing campaigns in recent years—among warehouse workers east of Los Angeles, carwasheros in Los Angeles proper, and recycling workers in Oakland and Southern California—has been worker concerns about unsafe and unhealthy conditions at work. As labor visionaries like Tony Mazzocchi predicted, workers are deeply concerned about and can be successfully organized around workplace health and safety issues. Rank-and-file concerns about health and safety, however, have not been taken up by union officials or lobbyists who view health and safety as a lower priority than labor legislation or gubernatorial appointees. ….

….What Cal/OSHA (along with the Fed OSHA and other state plans) needs is the political will on the part of politicians and their appointees to make worker health and safety a priority, ensure worker safety agencies have the staffing and resources they need to enforce the law, and withstand inevitable employer campaigns against effective worker protection regulations and their implementation. Creating this political will depends on the labor movement making workplace safety a “non-negotiable demand,” along with its other priorities in both contract talks and political campaigns. The labor movement needs to return to the campaigning of the 1960s and 1970s that made worker health and safety a cause célèbre—and established the Occupational Safety and Health Administration and Mine Safety and Health Administration under Republican President Nixon—not only for unions but also for OHS professional organizations, for the environmental movement concerned that toxic exposures inside the plant will generate toxic exposures outside the plant, and for the working public as a whole.

Among the campaigns labor could lead, and win support from other working-class and community organizations, are efforts to ensure OSHA agencies have the staffing and resources needed to effectively protect workers on the job; to undertake special efforts to protect particularly vulnerable workers such as immigrants and Latino workers in general who suffer higher rates of injury, illness, and death; and to reduce or eliminate the use of toxic chemicals that poison workers, surrounding communities, and even consumers. ….

‘Those Who are Used’: A Commentary on the Employee: A Political History, by Jean-Christian Vinel

Source: Christopher Tomlins, University of California – Berkeley, Public Law Research Paper No. 2546331, January 7, 2015

From the abstract:
This paper is a critical commentary on Jean-Christian Vinel’s 2013 book, The Employee: A Political History. In substance, Vinel’s book addresses the history and consequences of the failure of American unions to organize supervisory employees. However, as befits a book published in a series created “to reverse the fragmentation of modern U.S. history and to encourage synthetic perspectives on social movements and the state,” it ranges rather more broadly. Thus, the book is a legal and political history of a word (“employee”). It also attempts an intellectual history of American industrial relations theory, and of the course of labor relations law from the New Deal into the twenty-first century. It is also a brave effort to synthesize the distinct “critical” and “industrial realist” strains of labor relations history that spent the better part of the 1980s and 1990s, amid the unfolding, never-ending, crisis of American trade unionism, arguing over how to interpret the legacy of the New Deal’s collective bargaining policy. And it is an effort at a critique of both those positions (although Vinel’s sympathies are ultimately with the realists.) Finally, while indubitably an American history, The Employee is intermittently comparative. This commentary assesses sympathetically Vinel’s efforts, but parts company from his conclusions.