Labor law

  • March 12, 2013

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.

  • February 19, 2013
    Guest Post

    by U.S. District Court Judge Robert W. Pratt, Southern District of Iowa


    In late January, U.S. Sen. Tom Harkin (D-Iowa) announced he would retire when this session of Congress ends in December, 2014. I have known Tom Harkin since we worked together as young lawyers at the Polk County (Des Moines, Iowa) Legal Aid Society. The first paragraph of any article about Harkin must mention the Americans with Disabilities Act, the landmark civil rights legislation outlawing discrimination against those with disabilities passed in the congress of 1989-90. This is as it should be because that law has literally changed the face of America but there is so much more, however, that most people do not know about his work.

    While at Polk County legal aid as a young lawyer he lobbied the Iowa legislature to pass the Uniform Consumer Credit Code, lobbied to eliminate the sovereign immunity for tort liability for governments, worked against those who wanted to raise the interest rates for consumers and challenged in the Iowa Supreme Court a loitering ordinance that was used indiscriminately against the poor.

    Although Iowa is now a politically competitive state, it was not always so.  From the time of the Civil War, just as southern states were solidly Democratic, Iowa was solidly Republican.  It was once common wisdom that “Iowa would go Democratic when hell went Methodist.” Remarkably   Harkin, during his political career has defeated five incumbent members of Congress, and is the only Democrat in Iowa’s history to be re-elected to the U.S. Senate. Along the way he has helped Iowa’s state Democratic Party to be one of the most progressive and best organized in the country. Harkin’s political legacy in Iowa is secure because of that and also because so many of his former staff and campaign people are prominent in today’s progressive movement.         

  • February 11, 2013

    Treatment of workers at HealthBridge nursing homes in Connecticut and gaps in the Family and Medical Leave Act (FMLA) show how stacked some labor law can be against workers. Even when workers win a string of victories in court, employers can stall in placing workers back on the job. For example, six-hundred workers who make no more than $32,000 have been out of work since June, despite a court order directing HealthBridge to put them back to work. Meanwhile, 40 percent of American workers aren’t covered by FMLA. And too often employees covered by the law are punished by their employers for attempting to take leave. Law professor Anne Lofaso suggests some simple ways to improve labor laws in her new ACS issue brief, aptly titled “We Are in this Together.

    -- ESA

  • January 11, 2013
    Guest Post

    by Ellen Dannin. She is the author of  Taking Back the Workers’ Law - How to Fight the Assault on Labor Rights (Cornell University Press) and the Fannie Weiss Distinguished Faculty Scholar and Professor of Law at Penn State Dickinson School of Law.


    Through the decades, many proposals have been made to replace, repeal, or amend the National Labor Relations Act. Most have foundered for good reason. Amending the NLRA requires applying the precautionary principle – first, do no harm. 

    In the case of the NLRA, proposed amendments should be justified by showing that a change will promote the NLRA’s purposes and policies. The ultimate policy is to restore equality of bargaining power between employers and employees by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”  The basic goal was to balance the power corporation and partnership law gave employers to become collective with a law that gave employees the right to take collective action to improve working conditions.

    The standard to measure the value of proposals to change the NLRA is not whether the change would increase the number of union members – although that certainly matters. It is whether the change would increase employee bargaining power. The purpose of increasing employee bargaining power was to improve the quality of work, and, ultimately, promote a fairer, more prosperous, more democratic society.

    Congress was impelled to pass the NLRA because the increase in power employers had, as a result of corporation and partnership laws, so skewed power toward employers that wages and working conditions had spiraled down and led to economic collapse.

    We have seen similar dynamics during the Great Recession with attacks on employee working conditions, and especially attacks on public sector employee wages and benefits – as well as through privatization. The ferocity of those attacks in recent years and the low percentage of union members raise concerns that the spiraling down of working conditions will lead to economic disaster. Desperate times seem to call for desperate measures.

    However, these days, most people have little to no first-hand knowledge of how the National Labor Relations Board operates or of the purpose of the law. Here, then, is a brief NLRA / NLRB primer.

  • December 14, 2012

    by E. Sebastian Arduengo

    Michigan Governor Rick Snyder (R) despite a massive outcry of protestors at the state capitol in Lansing signed a so-called “right-to-work” bill into law. And just like in neighboring Indiana, right to work passed despite a massive outcry, and Michigan joined 23 other states that have passed such legislation in a seeming race to the bottom for the benefit of corporations that have made massive political donations to the Republican proponents of these bills.

    So what is “right to work,” and why are so many Republican officials making it a legislative priority? Put simply, right-to-work legislation prohibits agreements that require employees of a firm to maintain union membership as a condition of employment, allowing workers who choose to do so the right to “work through a strike.” The problem with this is that federal law requires unions to bargain for a contract that benefits all workers, regardless of whether they become members of the union. And, unions are founded on the premise of collective action, when individuals can take advantage of the benefits that unions win in contracts without having to pay their fair share in dues; it creates a massive free-rider problem that undermines the purposes, and ultimately the benefits that a union provides. For that reason, the AFL-CIO calls this kind of legislation a “right to work for less [pay/benefits]” law.