Labor Law

  • September 5, 2017
    Guest Post

    Samuel R. Bagenstos, Frank G. Millard Professor of Law at the University of Michigan Law School

    For many of us, Labor Day marks the end of summer. We’ll perhaps have a cookout with family, friends, and neighbors, or maybe take advantage of the deals at the local shopping mall.

    But the Labor Day holiday, officially declared in 1894, once meant much more than that. The American Federation of Labor president Samuel Gompers described it as a day when workers would “meet at their parks, groves and grounds, and by appropriate speech, counsel with, and pledge to, each other that the coming year shall witness greater efforts than the preceding in the grand struggle to make mankind free, true and noble.”

  • August 15, 2017
    Guest Post

    by Sharon Block, Terri Gerstein and Jim Tierney

    *This piece was originally posted to On Labor

    Fighting the dangers of tobacco, seeking redress for homeowners during the mortgage crisis, and most recently standing up against the Muslim ban – state attorneys general have long been at the forefront of efforts to protect the well-being of the people of their states. In recent months, progressive state attorneys general have emerged as some of the nation’s foremost champions of civil rights and of humane, sensible policy in the face of declining protection at the federal level. As income inequality grows and too many American workers struggle to get a fair deal in our economy, the role of state attorneys general in enforcing statutes that protect workers’ economic interests has taken on new importance.  To build on the energy and expertise of these public servants, under the auspices of the Labor and Worklife Program at Harvard Law School, we recently hosted attorneys from the offices of 11 state attorneys general last week to discuss strategies and best practices for enforcing labor laws.

  • July 28, 2017
    Guest Post

    by Anne Marie Lofaso, Arthur B. Hodges Professor of Law, West Virginia University College of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    Labor law is no stranger to polarization. The National Labor Relations Board – that New Deal federal agency established by Congress to enforce the National Labor Relations Act (the principal federal law to regulate relations between unions and private-sector employers) – has long been a prime battleground for political polarization. Starting with the Eisenhower Administration’s confirmation of Guy Otto Farmerlawyer for the Bituminous Coal Operators’ Association (a multiemployer bargaining association formed in 1950 to represent coal operators in negotiations with the United Mine Workers) – to serve as Chairman in the mid-1950s, the Board has oscillated among (mostly) reasonable policy choices within the interstices and ambiguities of the NLRA’s statutory language.

    Last month, President Trump nominated Marvin Kaplan, a Kansan with extensive government (but no labor-litigation) experience, and William J. Emanuel, a Partner in the Los Angeles office of Littler Mendelson, to fill two vacancies on the National Labor Relations Board. On July 13, 2017, the Senate Health, Education, Labor, and Pensions Committee held confirmation hearings.  Their confirmation would return a pro-business, Republican-backed majority to the Board for the first time since the relatively halcyon days of George W. Bush’s presidency.

  • July 24, 2017
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    With key National Labor Relations Board and Department of Labor appointments nearing confirmation votes, the Trump administration’s labor policy will soon be in full swing. There is little doubt that that policy will involve some 180-degree reversals from the generally pro-worker positions of the Obama NLRB and DOL, and other more incremental retreats from Obama-era policies. This post discusses a few deregulatory changes that are likely to take effect over the next several months or years, and what they will mean for workers.

    The Department of Labor

    Under Tom Perez’s leadership, the Obama Department of Labor enacted a series of new rules designed to improve workers’ lives. Key among them was a rule that doubled the threshold below which employers would have to pay overtime to white-collar workers to $47,500. In addition to that signature achievement, other important Obama DOL rulemakings would have forced employers to disclose more of their spending on anti-union “persuaders,” and halved the permissible level of silica dust (which is linked to cancer and other lung diseases) to which construction workers can be exposed. The first two of these rules were enjoined before they could take effect; litigation regarding the last is pending in the D.C. Circuit.

  • July 6, 2017
    Guest Post

    *This piece originally appeared on onlabor.

    by Sharon Block, Executive Director, Labor and Worklife Program, Harvard Law School

    On Friday, the Trump Administration finally took a position in the Fifth Circuit litigation over the validity of the Obama Administration’s rule to raise the overtime salary threshold to $47,476 from the $23,660 level that has been in place since 2004. On the eve of the rule’s implementation in 2016, Judge Amos Mazzant (E.D. Tex.) had issued a nation-wide injunction enjoining the Department from enforcing the rule. Judge Mazzant found that the Department lacked the authority under the Fair Labor Standards Act to impose a salary threshold for determining overtime eligibility – effectively invalidating every overtime regulation since 1938. Just prior to Inauguration Day, the Obama Administration filed a brief in the Fifth Circuit asking the appeals court to reverse the district court’s decision and lift the injunction, asserting both that the Department had the authority impose a salary threshold and that it had set the threshold at an appropriate level.

    The Trump Administration walked away from defending the new salary threshold while attempting to maintain its authority to issue in its own rule. In its reply brief, the Department of Labor continued to defend its authority to set a salary threshold in conjunction with a duties test. The Department rejected Judge Mazzant’s assertion that the statute compelled that the Department adjudge overtime eligibility strictly on the basis of a salaried employee’s duties. The Department did not, however, ask the Fifth Circuit to affirm the validity of the Obama Administration rule. Instead, the Department signaled that it was abandoning the Obama rule and that it would be revisiting the question of the appropriate salary threshold, telling the court that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”