workers' rights

  • November 12, 2014

    by Ann C. Hodges, Professor of Law, University of Richmond

    In one of the surprising results of election night, four traditionally Republican states passed ballot measures increasing the minimum wage. By significant margins, voters in Alaska, Arkansas, Nebraska and South Dakota adopted laws raising the minimum wage. Voters in the blue state of Illinois passed an advisory referendum urging the legislature to increase the minimum wage, while at the same time electing a Republican governor. In a state like Alaska, the high cost of living may have influenced voters, but that does not explain the outcome in the other states. What caused these somewhat anomalous results?  After all, Republicans have traditionally opposed increases in the minimum wage and most continue to do so. 

    While speculation about the motivations of votes is always risky, these results appear to affirm the effectiveness of two recent strategies of workers’ rights advocates. First, it appears that voters are recognizing the serious inadequacy of the wages of low paid workers. The widely publicized demonstrations by low wage fast food and retail workers have raised public awareness and focused attention on the fact that many of these workers are adults, often with families that they are working hard to support.

    If I am correct that the public protests helped motivate voters, it reminds us that strikes and demonstrations, which until recently had been largely abandoned by unions and other advocacy groups, remain effective at drawing public attention to inequalities. Social media has enhanced the ability to both organize and publicize demonstrations. Strategic use of these tactics will continue to keep these issues in the public eye.

  • October 31, 2013
    Guest Post
    by Emily J. Martin and Cortelyou Kenney, National Women's Law Center. Ms. Martin is the Vice President and General Counsel of the NWLC. Ms. Kenney is a Cross-Cutting Legal Projects Fellow at the NWLC.
     
    Thirty-five years ago today, the Pregnancy Discrimination Act (PDA) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert which held that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most – that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once-common policies – such as forcing pregnant women off the job regardless of their ability to work – are no longer permissible.
     
    Yet pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent while also limiting its protections for pregnant workers.
     
    Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations – such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting – are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy even when their employers provide similar accommodations to employees who need them because of disability or injury.
  • 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.

  • September 21, 2012
    Guest Post

    By J. Chris Sanders, General Counsel, United Food & Commercial Workers Union Local 227


    Michigan voters will have the opportunity to defeat so-called “right-to-work”in November, and ensure that Michigan workers will have constitutional rights on the job far above current federal law.

    What is "right-to-work"? In short, big trouble for working people, a law that, as Martin Luther King said, guarantees neither rights nor work.

    A little background: Right-to-work is a provision in the National Labor Relations Act. The trouble comes from the NLRA's weak constitutional underpinning. The NLRA is founded upon the U.S. Constitution's Commerce Clause, affording the federal government the power to enact statutes and take other actions to regulate commerce. Unlike many countries, U.S. labor rights to organize and bargain collectively are not deemed fundamental. In other countries, these rights are founded upon those of freedom of speech, association, and assembly, but not in the U.S.  Here, it's just about commerce, meaning business.

    Right-to-work is all about business. The federal NLRA permits states to enact laws that keep unions weak and wages low. It requires labor unions, which are membership organizations, to bargain for and represent employees who choose not to be members for free, thereby weakening those unions and driving down wages.