Category Archives: Labor Laws/Legislation

The Federal Minimum Wage: In Brief

Source: David H. Bradley, Congressional Research Service (CRS), CRS Report for Congress, R43089, May 30, 2013

The Fair Labor Standards Act (FLSA), enacted in 1938, is the federal legislation that establishes the minimum hourly wage that must be paid to all covered workers. The minimum wage provisions of the FLSA have been amended numerous times since 1938, typically for the purpose of expanding coverage or raising the wage rate. Since its establishment, the minimum wage rate has been raised 22 separate times. The most recent change was enacted in 2007 (P.L. 110-28), which increased the minimum wage to its current level of $7.25 per hour.

In addition to setting the federal minimum wage rate, the FLSA provides for several exemptions and subminimum wage categories for certain classes of workers and types of work. Even with these exemptions, the FLSA minimum wage provisions still cover the vast majority of the workforce. Despite this broad coverage, however, the minimum wage directly affects a relatively small portion of the workforce. Currently, there are approximately 3.6 million workers, or 4.7% of all hourly paid workers, whose wages are at or below the federal minimum wage of $7.25 per hour. Approximately three-quarters of minimum wage workers are age 20 or older and nearly two-thirds work part time.

Proponents of increasing the federal minimum wage argue that it may increase earnings for lower income workers, lead to reduced turnover, and increase aggregate demand by providing greater purchasing power for workers receiving a pay increase. Opponents of increasing the federal minimum wage argue that it may result in reduced employment or reduced hours, lead to a general price increase, and reduce profits of firms paying a higher minimum wage.

The Fair Labor Standards Act (FLSA): An Overview

Source: Gerald Mayer, Benjamin Collins, David H. Bradley, Congressional Research Service (CRS), CRS Report for Congress, R42713, June 4, 2013

The Fair Labor Standards Act (FLSA) provides workers with minimum wage, overtime pay, and child labor protections. The FLSA covers most, but not all, private and public sector employees. In addition, certain employers and employees are exempt from coverage.

Provisions of the FLSA that are of current interest to Congress include the basic minimum wage, subminimum wage rates, exemptions from overtime and the minimum wage for persons who provide companionship services, the exemption for employees in computer-related occupations, compensatory time (“comp time”) in lieu of overtime pay, and break time for nursing mothers.

Basic Minimum Wage
• The FLSA requires employers to pay covered, nonexempt employees at least the minimum wage. In 2007, the basic minimum wage was raised, in steps, from $5.15 to $7.25 an hour. The basic minimum wage was raised to $7.25 an hour effective July 24, 2009. As of January 1, 2013, 19 states and the District of Columbia have minimum wage rates that are higher than the federal minimum wage rate.
• Basic minimum wage rates in American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI) are lower than in the continental United States. In 2007, Congress passed the Fair Minimum Wage Act of 2007 (P.L. 110- 28), which mandated annual increases of $0.50 an hour in the minimum wages of American Samoa and CNMI. In 2010, Congress temporarily suspended these increases. The minimum wage in CNMI increased by $0.50 an hour to $5.55 on September 30, 2012. In July 2012, Congress delayed the increases in American Samoa. The next minimum wage increases in American Samoa are scheduled for September 30, 2015.

Subminimum Wage Rates
• Tipped employees may be paid less than the basic minimum wage, but their cash wage plus tips must equal at least the basic minimum wage of $7.25. Employers may pay tipped workers $2.13 an hour in cash wages, provided the employees receive at least $5.12 an hour in tips. The latter amount is called a “tip credit.”
• Employers may pay special minimum wages (SMWs) to workers with disabilities. The purpose of the SMWs is to provide persons with disabilities the opportunity to work.

Overtime
• The FLSA requires employers to pay at least time-and-a-half to covered, nonexempt employees who work more than 40 hours in a week at a given job.
• The FLSA allows covered, nonexempt state and local government employees to receive compensatory time off (comp time) for hours worked over 40 in a workweek. Comp time is time off with pay in lieu of overtime pay.

Exemptions
• The FLSA exempts certain employers and employees from the minimum wage, overtime pay, or child labor standards of the act.
• Certain employees in computer-related occupations are exempt from both the minimum wage and overtime standards of the FLSA if they meet an hourly wage or weekly salary test and a job duties test.

Domestic service workers who provide companionship services in private homes are exempt from both the minimum wage and overtime requirements of the FLSA. Under regulations proposed by the U.S. Department of Labor (DOL), minimum wage and overtime coverage would be extended to companions employed by a third party. Overtime pay would be extended to live-in domestic service workers employed by a third party.

Why Critics of State and Federal Workplace Safety Systems Might be Right

Source: Jonathan Walters, Governing, August 2013

The fatal explosion earlier this year at a Texas fertilizer plant that hadn’t been inspected since 1985 brought attention to the nation’s dysfunctional and ineffective system of keeping employees — both in the public and private sectors — safe…

…Two revelations in particular caught the attention of the public and press. The first was that the plant hadn’t been subject to a safety inspection since 1985. The second was that a key player seemed to be missing in the safety equation: the Texas Occupational Safety and Health Administration. In fact, the two revelations are directly related. Texas doesn’t have an occupational safety and health administration. The responsibility for workplace safety in Texas falls to the U.S. Occupational Safety and Health Administration (OSHA), which is stretched pretty thin these days.

The country, in short, has a bifurcated system of oversight. The federal OSHA is responsible for workplace safety in some states, while in others, state-run OSHA offices handle the job themselves. The questions, then, for states on either side of the bifurcation are: How effective is the oversight of workplaces — from oil rigs and fertilizer plants to office buildings and beauty salons? Who’s in charge? How well are they doing their jobs? These are surprisingly complicated questions with no easy answers….

…It gets even more muddled. U.S. OSHA doesn’t cover state and local employees, only private-sector and federal workers. So five states operate their own bifurcated systems whereby the feds cover private-sector and federal workers and the state covers state and local employees. Twenty-two states have programs that cover all workers — private and public. The remaining 32 states are covered by U.S. OSHA. (Most state programs were put in place in the 1970s, soon after passage of the federal law; few states have elected to take over responsibility for workplace health and safety since then, although Illinois did extend oversight to state and local employees in 2009.)…

The Decline of Unionization in the United States: Some Lessons from Canada

Source: Kris Warner, Labor Studies Journal, Vol. 38 no. 2, June 2013
(subscription required)

From the abstract:
This article examines the decline in unionization that has occurred in the United States over the past half century, focusing on the role that employer opposition to unions has played, together with relatively weak labor law. It compares the U.S. experience and labor law regime to those of Canada. It finds that, compared to their Canadian counterparts, U.S. workers have much more difficulty in exercising their right to freely join and form unions and participate in collective bargaining, in large part due to ill-restrained employer opposition.

Report: Paid sick leave doesn’t scare away new business

Source: Katie Mcdonough, Salon, June 20, 2013

An audit of Washington, DC’s paid sick leave program reveals skeptics were wrong about its impact on businesses.
Related:
Audit of the Accrued Sick and Safe Leave Act of 2008
Source: Yolanda Branche, Office of the District of Columbia Auditor, June 19, 2013

DC’s Paid Sick Leave Law Had No Negative Effect On Businesses
Source: Bryce Covert, ThinkProgress, June 20, 2013

Policies to Reduce Influenza in the Workplace: Impact Assessments Using an Agent-Based Model
Source: Supriya Kumar, John J. Grefenstette, David Galloway, Steven M. Albert, Donald S. Burke, American Journal of Public Health, Posted online on 13 Jun 2013
(subscription required)

Surveillance at Work

Source: Workplace Fairness, 2013

Recently Workplace Fairness updated its Q&A page on the legality of various potential surveillance practices at work…

This page provides answers to the following questions
1. Can my employer videotape me?
2. Can my employer videotape me changing in the locker room or other private area with a hidden camera?
3. Can my employer audiotape me?
4. Can my employer monitor my telephone calls?
5. Can my employer listen to messages on my voice mail?
6. Can my employer monitor my voice messages if I have deleted them?
7. Can my employer read my postal mail
8. Can my employer monitor my computer and e-mail activities?
9. Can an employer track my movements, speed, and/or break-time using GPS devices?
10. What other types of mechanisms are employers using to monitor employees, and is my employer allowed to use them?
11. I feel that my employer has violated my privacy rights. What can I do?

Are Shrinking Unions Making Workers Poorer?

Source: Emma Green, Atlantic, July 24 2013

Growing income inequality is a fact, but its cause is unclear…. The causal chain is so tempting: As unions get smaller, collective bargaining gets weaker, worker wages go down, and evil profiteers cackle…. But other factors muddy the issue. Some experts argue that growing workforce automation, the global reach of the economy, and the need for high-skill labor has diminished the power of collective bargaining and cut into workers’ wages. If there’s cheap labor available in Bangladesh, why would an American company pay workers significantly more to do the same work? In the face of a cheap global labor pool, unions have less ammunition against employers, and U.S. workers also get paid less, regardless….

…Still, the fact remains that full-time workers who belong to unions make more money than those who don’t: On average, union members make about $200 more per week than their counterparts. This figure is influenced by lots of factors, including differences in average salary in regions with low levels of unionization. But even bearing that in mind, research shows that in “right to work” states, where employees cannot be required to pay union dues as a condition of their employment, workers get paid less than the rest of the country. That was true even when business grew in “right to work” states, indicating that weakening unions might help business owners, but it doesn’t do much for workers. (This Washington Post article gives a great overview of the economic effects of “right to work” legislation). …

Why Nurses Need Whistleblower Protection

Source: Mary Beth Thomas, Jim William, Journal of Nursing Regulation, Vol. 2 no. 2, October 2012
(subscription required)

From the abstract:
Boards of nursing and professional associations have a strong belief that nursing practice must emphasize patient advocacy and the importance of the nurse’s role in the protection and safety of patients. Though nurses are educated about their responsibilities regarding advocacy and safety, many have difficulty navigating workplace impediments that restrict their duty to advocate for patients. This was not the issue for two Winkler County, Texas, nurses who reported concerns about a physician’s dangerous medical practice to the Texas Board of Medicine. Not only were the nurses fired from their long-standing jobs for reporting the physician’s unsafe practice, they were also criminally indicted for a third-degree felony. This article reviews the case of these nurses and the subsequent legislation initiated by the Texas Nurses Association and supported by the Texas Board of Nursing to prevent such occurrences in the future.

Hollow Victories: The Crisis In Collecting Unpaid Wages For California’s Workers

Source: Eunice Hyunhye Cho, Tia Koonse, Anthony Mischel, National Employment Law Project (NELP) and UCLA Labor Center, June 2013

From the press release:
Over 83 percent of workers in California are unable to hold employers accountable and recover their unpaid wages after receiving a legal judgment in their favor, according to a groundbreaking study by the National Employment Law Project and the UCLA Labor Center. The study, Hollow Victories: The Crisis in Collecting Unpaid Wages for California’s Workers, exposes the challenges that workers face in collecting wages owed from their employers—even after state authorities rule in the workers’ favor and order employers to pay. The report was released Thursday morning at a live press event featuring workers who have tried to claim their unpaid wages, representatives from State Assembly Member Bonnie Lowenthal’s office and labor leaders.

The first of its kind, the study finds that the majority 60 percent of businesses found liable for unpaid wages ultimately suspend, forfeit, cancel or dissolve their businesses, making it more difficult for employees to collect the wages they are owed….

In Defense of Snooping Employers

Source: Jessica Fink, California Western School of Law, July 12, 2013

From the abstract:
In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the “social media privacy” of individuals in their states. Indeed, discussions of workplace privacy are everywhere nowadays: Media stories condemn employers’ efforts to monitor their employees’ email, Internet and telephone usage. Employees rage about perceived invasions of their privacy. Politicians heatedly debate how to limit employers’ prying conduct, passing laws designed to reign in certain types of monitoring by employers. At the same time, employers also find themselves perplexed, as they grapple with how they can gather the information that they need to make important business decisions within an environment that views such efforts with disdain. In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions continue to exist regarding the proper scope and limits of employees’ privacy.

This article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to “snoop” into their employees’ private lives. The article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this article discusses the financial, legal and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees.

At bottom, this paper attempts to put the “problem” of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees and the public at large.