Labor Law

  • August 17, 2016

    By Kevin Battersby Witenoff

    In The Hill, Melissa Boteach and Rebecca Vallas advocate to reform TANF and expound upon the necessity to improve other social welfare programs.

    The ACLU has filed a lawsuit against the Florida Department of Corrections on behalf of transgender woman, Reiyn Keohane. The ACLU and Keohane are alleging the DOC has infringed upon her Eighth Amendment rights by disallowing hormone therapy treatment, reports Andrew V. Pestano of UPI.

    The Huffington Post published an op-ed by Jason Steed in which he explains why it may be in Republican Senators' best interest to reconsider a hearing for Supreme Court nominee Merrick Garland.

    Annalyn Kurtz in The New York Times highlights the challenges faced by new mothers in a male-dominated field that are representative of the struggles females encounter in the workplace across the country.  

  • May 20, 2016
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    May 18, 2016, is a momentous day for U.S. workers. The U.S. Department of Labor released new overtime rules that restore the New Deal-era promise of the Fair Labor Standards Act (FLSA) by increasing the salary level required to exempt certain employees from overtime pay. The new rules will be a boon for working and middle class Americans, as it will increase their pay, provide them more time to spend with their families, lead to improvements in health and productivity, and create jobs.

    The FLSA, originally enacted in 1938, assures overtime premium pay of time-and-a-half for employees who work more than 40 hours per week. However, the FLSA exempts some types of employees from the overtime protection, in particular white collar workers classified as executive, administrative, professional, outside sales, and computer employees. Congress delegated authority to the Secretary of Labor to define the exemptions, and generally, employers must satisfy three requirements to properly classify employees as exempt pursuant to a white collar category: 1) the employees must be paid a fixed salary, 2) the employees must be paid at least a specific salary amount, and 3) the employees’ primary duties must involve one of the enumerated exemptions.

    Currently, the DOL’s regulations set the salary level at $455 per week, which is $23,660 on an annual basis. The rigors of inflation and inattention have eroded the FLSA’s overtime protection at this level. The designated amount is less than the poverty line for a family of four and only 1.6 times the federal minimum wage of $7.25. Furthermore, at present, a mere seven percent of salaried workers receive overtime protection, whereas 62 percent did so in 1975.

    The new DOL regulations increase the salary level required to trigger the white collar exemptions. The revised rule, which takes effect December 1 of this year, sets the salary level at $913 per week, or $47,476 annually, which equates to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census region (currently the South). The new rule also creates an updating mechanism which benchmarks the salary level every three years to the same metric.

  • May 19, 2016

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, The George Washington University Law School

    The founders of Uber had a great idea. We know that because millions of Americans use its service daily. We also know it because hundreds of thousands of individuals have signed up to drive for Uber, and many of them love the opportunities it presents: make a little extra cash, control your working hours, and make money from a car that sits idle much of the time.

    On the negative side, Uber treats drivers as independent contractors, not employees, and that means that the drivers pay the employer’s as well as the worker’s share of Social Security and Medicare taxes, they get no vacation or sick pay, and if they are thinking about saving for retirement, they have to kick in 100 percent. In addition, some drivers are unhappy because Uber is able to unilaterally change the conditions under which its drivers work, generally to the detriment of the driver. Some drivers have taken Uber to court or to the National Labor Relations Board, claiming that they are being improperly classified as independent contractors, not employees under state and federal laws. Some of those cases may result in favorable rulings several years from now, but given the fact that many drivers work for Uber only a few hours a week or no more than half time, there is a real likelihood that many of them will be found to be properly classified as independent contractors.

    The leadership in Teamster Local 117 in Seattle had a different idea. They decided to seek legislation that would entitle Uber drivers (and others working for other companies, including taxi companies) to engage in collective bargaining as a means of gaining some leverage with Uber. Under current law, the right to engage in collective bargaining is limited to “employees,” and the idea was to create a comparable right for Uber drivers. The union convinced the Seattle City Council, led by Mike O’Brien, to enact such a law. There was considerable opposition to the law from Uber and its competitors, as well as the business community generally. Mayor Ed Murray declined to sign the law because of his concerns of the burdens that it would place on the City to implement it, but he did not veto it, and so the law became effective on December 23, 2015.

  • May 11, 2016
    Guest Post

    by Ruben J. Garcia. Ruben Garcia is Professor of Law at UNLV William S. Boyd School of Law, where he teaches Labor Law and Professional Responsibility. He can be reached at ruben.garcia@unlv.edu.

    We are looking at another hot summer of litigation over the Obama Administration’s attempts to bring a modicum of regulation to the workplace. Currently, the Department of Labor’s Persuader Rule, enacted pursuant to federal labor law, is being reviewed in three different district courts and in Congress. Since 1959, the Labor Management Reporting and Disclosure Act (LMRDA) has required employers to disclose certain expenditures used to persuade employees in their choice of a bargaining representative. Once the DOL’s final revised rule implementing the mandate of the statute was published, employers and their law firms quickly brought suit to block the rule. The House Committee on Education and the Workforce held a hearing on April 27 which included three witnesses opposed to the rule, and one supporting it. Republicans in the House have introduced a Congressional resolution challenging the revised Rule as well.

    Federal courts in three different states will soon decide whether the revised rule should be enjoined because it exceeds the DOL’s authority or violates the U.S. Constitution. Apart from the merits of these challenges, there have been several complaints about how the revised rule’s requirement to report arrangements to provide “indirect persuasion” might cause attorneys to violate their ethical duty of confidentiality. The former president of the American Bar Association testified at the April 27 hearing that the revise Persuader Rule would “undermine the confidential attorney-client relationship.” The problem with these concerns, as I and numerous other labor law and legal ethics professors have written in a letter to the Committee, is that the revised Persuader Rule can coexist comfortably with the ABA Model Rules of Professional Conduct.

  • January 22, 2016
    Guest Post

    by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

    There are cynics who say that Supreme Court justices are just politicians in black robes, willing to manipulate the law, and discard the Court’s own precedents, to suit their political views. But that’s misleading: the Court does not overrule its precedents very often at all. According to one analysis, in the last 75 years -- a period that includes activist Courts and restrained Courts, liberal Courts and conservative Courts -- the justices, in constitutional cases, have overruled just 91 of their previous decisions: an average of just over one each year.

    Oral argument this month in Friedrichs v. California Teachers Association made it look like a nearly 40-year-old decision called Abood v. Detroit Board of Education might be this year’s addition to that list. That would make no sense at all.

    Friedrichs, and Abood, are about the fees that public employees pay when they are represented by a labor union. Unions, of course, bargain with employers on behalf of employees, over wages, hours, and terms of employment, and they are required by law to represent all of the workers in their bargaining unit -- union members and non-members alike -- equally. Unions also engage in political activity, like campaigning on behalf of candidates. Since all employees benefit from the union’s bargaining and other workplace-related activity, the employer and union are allowed to agree that all employees will chip in to support that part of the union’s work. Otherwise, the entire arrangement might unravel: people will not pay for something -- in this case, the work that the union is required to do on their behalf -- if they can get it for free. At the same time, though, employees who disagree with the union’s political activities have a right, under the First Amendment, to refuse to pay for them. That’s what Abood held.

    It seems like a sensible compromise. But sensible or not, it has been the law since 1977. The Friedrichs litigation was ginned up by some conservative lawyers to try to get the Supreme Court to overrule Abood and hold that employees have a right to refuse even to contribute to work that the union is doing on their behalf.

    Nothing about Abood would justify the Court’s overthrowing it. 

    • Abood was a unanimous decision, and the Supreme Court has invoked it, cited it, implemented it, and relied on it many times in the intervening decades -- often unanimously. Lower courts have done the same. Only in the last few years -- decades after Abood was on the books but coinciding, of course, with a wide-ranging political attack on public employee unions -- has Abood’s status as a precedent been seriously challenged.
    • It’s not just that the courts have relied on Abood – twenty-three states have labor laws that rely on the Abood compromise. That means that collective bargaining agreements -- the workplace constitutions -- governing millions of employees and resolving countless workplace challenges will have to be rewritten, at enormous cost, monetary and otherwise, to the effective working of state and local governments.
    • And Abood is not just about labor unions. “Integrated” bar associations, to which lawyers are typically required to pay dues, engage in various forms of speech; the Supreme Court held that Abood governs that arrangement. The Court drew an analogy to Abood when it ruled that state universities could require students to pay activities fees that support student groups, including groups that propagated messages with which some students disagreed. If the Court overrules Abood, it is only a matter of time before litigants will challenge those institutions, too. Unless the courts are going to say that there are special rules that, for some reason, apply only to labor unions, they will have a hard time explaining why those other institutions are different.

    The teachers who are challenging Abood -- their lawyers, anyway -- portray this all as an epic battle about free speech and the First Amendment. But it is worth keeping things in perspective. Abood leaves teachers, and all other public employees, completely free to criticize their union as vociferously as they like. They can attack the union’s leadership, its priorities, or its tactics. Meanwhile, everyone accepts that teachers’ rights to speak in the workplace can be limited in order to make sure that schools will function well. Teachers cannot say whatever they want in a classroom; they cannot disrupt relations with their colleagues; they cannot speak abusively to students or parents.