4. Republican controlled state legislatures' anti-union efforts
From a recent New York Times Article:
"Republican lawmakers in Indiana, Maine, Missouri and seven other states plan to introduce legislation that would bar private sector unions from forcing workers they represent to pay dues or fees, reducing the flow of funds into union treasuries. In Ohio, the new Republican governor, following the precedent of many other states, wants to ban strikes by public school teachers.
Some new governors, most notably Scott Walker of Wisconsin, are even threatening to take away government workers’ right to form unions and bargain contracts."
Thanks to Erica Berencsi for forwarding the article.
5. Union use of blogs in organizing campaigns
The Word on Employment Law linked to an interesting IBEW story about an anonymously carried out organizing drive that proved successful in a New York can plant. According to the IBEW story:
"Employees reached out to Local 363 last spring for support – but the fear of captive-audience meetings, harassment and other actions by the employer left many at the plant wary of how to press forward without management sidelining their efforts.
So organizers got crafty and set up a special blog strictly for the 164 employees to debate, strategize, air concerns and ultimately come together for victory, all while avoiding many of the union-busting tactics so common in most campaigns. "
Will we see more of this type of blog-led campaign in 2011? With the rise of the smart phone and tablet, I would think so.
Thursday, January 6, 2011
Monday, January 3, 2011
3 Stories to Follow in 2011
I set out to provide 11 stories to follow in '11, but that was a little ambitious. Here are three:
1. NFL and Player's Union Contract Expires in March. This high profile labor-management showdown will bring attention and interest to the world of labor law that has otherwise been sliding for at least a decade. The threat of a lockout is looming, and interest is already rising. The highest profile labor-management conflict of 2010 came in June when 12,000 Minnesota nurses struck; the potential for a lockout of NFL players has already drawn more searches for "NFL Lockout" than the nurses' strike drew for "nurse strike" at its height. Americans (including me) love their football and if they don't get to see football on Sunday (and Monday night) they will want to know why. Whatever happens in this conflict, it will be eagerly watched and highly publicized. The NBA, the NHL and MLB all have contracts expiring this year as well, and so it could be a big year in professional sports bargaining.
2. The EEOC's Credit History Disparate Impact Suit against Kaplan. Employers have increasingly used credit histories and credit scores as a way to screen applicants. Several states have passed legislation against this practice and more are considering the issue. The New York Times called the EEOC's suit
"an unusual intervention by the federal government on the issue." Because nearly half of employers use credit history in at least some of their hiring decisions, if the suit is successful, it will have a widespread impact. Win or lose, the suit may be a sign that the EEOC is looking to pursue more statistical suits in the future.
3. The NLRB's Posting Rule Proposal. The NLRB has proposed a rule that would require all covered employers to post a notice regarding employee rights under the NLRA. Three reasons to follow this story: First it will be interesting to watch the NLRB enter into substantive rule-making deliberations, a task from which it has taken a long break (1975). Second, if the rule passes, it will have an impact in the workplace, in the form of more employees knowing their rights and finding their way to the NLRB. How many more? Only time will tell. Finally, this could be a sign that the NLRB will be proposing more rules in the future.
1. NFL and Player's Union Contract Expires in March. This high profile labor-management showdown will bring attention and interest to the world of labor law that has otherwise been sliding for at least a decade. The threat of a lockout is looming, and interest is already rising. The highest profile labor-management conflict of 2010 came in June when 12,000 Minnesota nurses struck; the potential for a lockout of NFL players has already drawn more searches for "NFL Lockout" than the nurses' strike drew for "nurse strike" at its height. Americans (including me) love their football and if they don't get to see football on Sunday (and Monday night) they will want to know why. Whatever happens in this conflict, it will be eagerly watched and highly publicized. The NBA, the NHL and MLB all have contracts expiring this year as well, and so it could be a big year in professional sports bargaining.
2. The EEOC's Credit History Disparate Impact Suit against Kaplan. Employers have increasingly used credit histories and credit scores as a way to screen applicants. Several states have passed legislation against this practice and more are considering the issue. The New York Times called the EEOC's suit
"an unusual intervention by the federal government on the issue." Because nearly half of employers use credit history in at least some of their hiring decisions, if the suit is successful, it will have a widespread impact. Win or lose, the suit may be a sign that the EEOC is looking to pursue more statistical suits in the future.
3. The NLRB's Posting Rule Proposal. The NLRB has proposed a rule that would require all covered employers to post a notice regarding employee rights under the NLRA. Three reasons to follow this story: First it will be interesting to watch the NLRB enter into substantive rule-making deliberations, a task from which it has taken a long break (1975). Second, if the rule passes, it will have an impact in the workplace, in the form of more employees knowing their rights and finding their way to the NLRB. How many more? Only time will tell. Finally, this could be a sign that the NLRB will be proposing more rules in the future.
Friday, December 31, 2010
Top 10 Developments in Labor and Employment Law in 2010
Here are my picks for the biggest developments in Labor and Employment in 2010. There was a lot going on in 2010 and so I'm sure I've overlooked some big things. Feel free to point out what I missed or tell me why I'm wrong in the comments:
1. Bullying
2010 was the Year of the Bully. Nationwide, bullying gained attention and anti-bullying measures gained traction. Below is a graph of Google Searches for "bullying" from 2004-2010:
Much of the bullying attention involved schools and children. However, "a rising tide raises all sails" and bullying in the workplace also received attention. New York passed an anti-bullying statute in its workplaces in May. David Yamada over at Minding the Workplace is an advocate for this movement, while Michael Fox over at Jottings by an Employer's Lawyer holds the contrary view. Whether you're concerned or not concerned about bullying or anti-bullying legislation, expect to see more of this issue in 2011. The graph below shows the appearance of bullying in news stories from 1980-2010.
2. The Supreme Court invalidates about 600 NLRB Decisions
In New Process Steel the Supreme Court struck down 27 months worth of decisions decided by a two-member National Labor Relations Board.
3. 27 month two member Board ends with appointments of Becker and Pearce.
The long stint of a two member Board at the NLRB came to an end when Becker and Pearce were appointed in April.
4. Health Care Law
Passed in March, the Patient Protection and Affordable Care Act is not primarily a labor or employment law, although it will certainly impact the workplace and it does create new employer obligations/employee rights. These include obligations to provide insurance that kick in in 2014 and the employer obligation to provide breaks and an area (other than a bathroom) to nurse or express milk (pump) that is already in effect. Besides its direct impact, the law may have indirect effects in workplace law, such as possible impact on state workers' compensation schemes.
5. Whistleblower Rights
The Whistleblower Protection Enhancement Act passed and agencies are expecting to be inundated with new whistleblower claims. Judging by the trend in the word's appearance in newspapers, I would say they are right:
but looking at the google search trends for "whistleblower", it doesn't seem like people are any more interested in finding out about whistleblower rights today than they were last year:
6. Labor Unrest in China
Labor unrest and strikes are a new development in China, and possibly a sign of things to come. China's One Child policy is now shifting power into the hands of only children who are in demand in China's factories.
7. The NMB Changes what it takes to be a Majority
The National Mediation Board (which has jurisdiction over entities covered by the Railway Labor Act) changed its majority requirement so that voters who don't vote are no longer counted as "no's". This means that in NMB elections, like NLRB elections, a union only has to win a majority of those who vote, not a majority of all employees.
8. EEOC issues GINA Regs
In November, the EEOC passed new regs on the Genetic Information Nondiscrimination Act, a law still little understood, that will be effective January 9, 2011. GINA and its regulations will become more important for employers as the science of genetic testing improves. But the regulations are important now as even casual conversations about an employee's health or family history could run afoul of GINA if the employer asked too many questions.
9. NLRB issues complaint in facebook firing case
See the Jeffery Hirsch's thoughts here.
10. Lewis v. City of Chicago
Philip Miles has written extensively on this case over at lawffice space and has named this the employment law case of the year. Here is his take:
"First, Lewis was a rare unanimous decision for the Court as Title VII cases are often sharply divided. Second, it set a clear rule: The statute of limitations for a disparate impact claim begins upon the application of the employer's practice, not the implementation.
What more could you ask for than a nationally binding precedent from a unanimous court with a clear rule of law? Sure, it didn't have the media hype of 2009's Ricci v. DeStefano (See my summaries of those opinions); nor did it generate the controversy of Gross v. FBL (summary here). Sometimes it's just nice to have a solid ruling on which to rely."
Happy New Year!
1. Bullying
2010 was the Year of the Bully. Nationwide, bullying gained attention and anti-bullying measures gained traction. Below is a graph of Google Searches for "bullying" from 2004-2010:
2. The Supreme Court invalidates about 600 NLRB Decisions
In New Process Steel the Supreme Court struck down 27 months worth of decisions decided by a two-member National Labor Relations Board.
3. 27 month two member Board ends with appointments of Becker and Pearce.
The long stint of a two member Board at the NLRB came to an end when Becker and Pearce were appointed in April.
4. Health Care Law
Passed in March, the Patient Protection and Affordable Care Act is not primarily a labor or employment law, although it will certainly impact the workplace and it does create new employer obligations/employee rights. These include obligations to provide insurance that kick in in 2014 and the employer obligation to provide breaks and an area (other than a bathroom) to nurse or express milk (pump) that is already in effect. Besides its direct impact, the law may have indirect effects in workplace law, such as possible impact on state workers' compensation schemes.
5. Whistleblower Rights
The Whistleblower Protection Enhancement Act passed and agencies are expecting to be inundated with new whistleblower claims. Judging by the trend in the word's appearance in newspapers, I would say they are right:
Labor unrest and strikes are a new development in China, and possibly a sign of things to come. China's One Child policy is now shifting power into the hands of only children who are in demand in China's factories.
7. The NMB Changes what it takes to be a Majority
The National Mediation Board (which has jurisdiction over entities covered by the Railway Labor Act) changed its majority requirement so that voters who don't vote are no longer counted as "no's". This means that in NMB elections, like NLRB elections, a union only has to win a majority of those who vote, not a majority of all employees.
8. EEOC issues GINA Regs
In November, the EEOC passed new regs on the Genetic Information Nondiscrimination Act, a law still little understood, that will be effective January 9, 2011. GINA and its regulations will become more important for employers as the science of genetic testing improves. But the regulations are important now as even casual conversations about an employee's health or family history could run afoul of GINA if the employer asked too many questions.
9. NLRB issues complaint in facebook firing case
See the Jeffery Hirsch's thoughts here.
10. Lewis v. City of Chicago
Philip Miles has written extensively on this case over at lawffice space and has named this the employment law case of the year. Here is his take:
"First, Lewis was a rare unanimous decision for the Court as Title VII cases are often sharply divided. Second, it set a clear rule: The statute of limitations for a disparate impact claim begins upon the application of the employer's practice, not the implementation.
What more could you ask for than a nationally binding precedent from a unanimous court with a clear rule of law? Sure, it didn't have the media hype of 2009's Ricci v. DeStefano (See my summaries of those opinions); nor did it generate the controversy of Gross v. FBL (summary here). Sometimes it's just nice to have a solid ruling on which to rely."
Happy New Year!
Tuesday, December 21, 2010
The Tooth Fairy
If you are looking for a last minute gift for that special labor lawyer in your life, look no further. The Tooth Fairy by Jake Hart (also known in the Eastern District of Pennsylvania as the Honorable Jacob P. Hart or fancifully as Jacon Hart by those who would elevate him to tolkienian greatness) is sure to please. As Steven LaCheen writes in the Florida Bar Journal, in The Tooth Fairy, "a union grievance hearing and arbitration proceeding are the centerpieces of a story that will hold your interest from first line to last, whether you know anything, or even care, about labor/management relations or not[.]" I'm glad that I saw LaCheen's recommendation because the book is as gripping as it is gritty and an enjoyable read. It has great characters, an intriguing plot, and plenty of commentary on labor law, labor relations and the human condition. Set in eastern Pennsylvania, the book is quite descriptive and has plenty of action in the form of brawlers, mafia goons, and motor cycle gangs to hold your attention.
Sunday, December 12, 2010
Covanta Bristol, Inc. 356 NLRB No. 46 (Dec. 3, 2010)
In this case, we have another meeting between labor and management gone awry. In the heated context of this labor dispute, the union steward did not lose protection of the NLRA by telling his boss, among other things, "pull your head out of your ass." But while labor disputes carry with them an expectation of harsh exchanges, the boss here violates the NLRA when he ends the meeting by banging on the desk and saying, "You want to see intimidation? I'll show you intimidation!" A majority of the Board found this statement to be a threat of unspecified reprisal in violation of 8(a)(1). Full decision here.
Subscribe to:
Posts (Atom)