December 23, 2010
New "Company" Unions? An Empirical Assessment
John Godard (U. Manitoba - Business Administration) and Carola Frege (LSE) have just posted on SSRN their article Union Decline, Alternative Forms of Representation, and Workplace Authority Relations in the United States. Here's the abstract:
This paper draws on a telephone survey of 1000 workers to explore whether alternative, nonunion forms of representation appear to be filling the gap left by union decline, whether this matters to authority relations at work, and whether it may, indeed, help to explain union decline. It finds that non-union associations do not appear to be filling this gap, but that management established, non-union representation systems are twice as widespread as is union representation and are evaluated as favourably by workers. It also finds that unions appear to have positive implications for authority relations at work, as reflected in worker perceptions of security, fairness, and justice. Non-union representation systems do not in-and-of themselves appear to do so, but they tend to be part of a bundle of practices that, in combination, does. Finally, although the results suggest that these systems are often in violation of section 8(a)(2) of the Wagner Act, they bear no association with worker propensity to vote for a union.
EEOC Sues Kaplan for Disparate Impact Based on Pre-Hire Credit Checks
We mentioned last month a recent surge in disparate impact claims based on pre-hire credit reports. The EEOC now is on board, having just filed suit against Kaplan Higher Education Corporation. Here's an excerpt from the EEOC's press release:
Since at least 2008, Kaplan Higher Education has rejected job applicants based on their credit history. This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity....
December 22, 2010
Just because he's the acting General Counsel doesn't mean that Lafe Solomon sees himself as a caretaker (a good thing, because he may be acting for a while). Solomon just announced a new policy to systematically seek "appropriate remedies" for serious ULPs during organizational campaigns. These remedies might include additional union access to the workplace or employees, court injunctions, or reading a remedial notice. According to the NLRB press release:
“In such cases, the discharges are often accompanied by other serious unfair labor practices such as threats, solicitation of grievances, promises or grants of benefits, interrogations and surveillance,” the Acting General Counsel wrote in a memo to the regional offices. “These additional unfair labor practices also have a serious impact on employee free choice, as they inhibit employees from engaging in union activity and dry up channels of communication between employees.”
In such cases, remedies should be crafted to “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice.” The memo authorizes regional offices to include in complaints, and in petitions seeking temporary injunctions from federal courts, appropriate remedies such as a reading of the Board’s remedial notice, or allowing union access to workplace bulletin boards and providing names and addresses of employees. “I believe that these remedies will further the important goal of ensuring employee freedom of choice with regard to unionization and restore the status quo where an employer has committed serious unfair labor practices in response to an organizing campaign,” Acting General Counsel Solomon wrote.
AALS Section Newsletters
This year the AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law combined forces to produce an annual AALS Newsletter. This newsletter begins with an update regarding relevant AALS presentations, hot topics panels, and cancellations. It continues with a list of promotions, moves and other announcements, followed by a list of publications from section members. The newsletter concludes with a Supreme Court round-up, as well as analyses of two recent Supreme Court decisions and an NLRB decision.
You can get the newsletter here.
DOL asks for Information on FLSA's Lactation Break Requirement
The Wage and Hours Division of the Department of Labor yesterday filed a Request for Information from the Public:
regarding the recent amendment to the Fair Labor Standards Act (FLSA) that requires employers to provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child’s birth. The Department of Labor (‘‘the Department’’) administers and enforces the FLSA through its Wage and Hour Division. Contained in this notice are the Department’s preliminary interpretations of the new break time amendment to the FLSA. The Department seeks information and comments for its review on various issues addressed in this notice, as it considers how best to help employers and employees understand the requirements of the break time for nursing mothers law.
Those issues include unpaid break time, what constitutes a reasonable break time, space for expressing milk, notice, the undue hardship exemption, relationship to the FMLA, enforcement, and compliance assistance, and provides additional resources. With the request, the WHD issued its fact sheet on the new law, and invited comments. Comments must be received on or before February 22, 2011, and may be submitted, identified by RIN 1235–ZA00 by either of the following methods: The Federal eRulemaking Portal: http://www.regulations.gov or mailed to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–3502, Washington, DC 20210.
Hat tip: Marcy Karin
December 21, 2010
Rutgers Employee Ownership Fellowships
Rutgers School of Management and Labor Relations is currently seeking applicants for fellowships focused on the study of employee ownership. Apparently, they're planning on awarding about 20 fellowships and are actively seeking more applicants in the legal field, including pre-tenure legal scholars. The fellowships are intended for:
[T]he study of employee stock ownership, profit sharing, broad-based stock options, and broadened ownership of capital in the corporation and in society in the United States. The Fellows Program invites applications for fellowships from outstanding doctoral students initiating or completing a dissertation, recent Ph.D. graduates and pre-tenure scholars in the areas of economics, history, management/business/labor and employment relations, law, philosophy, psychology, political science, public policy, and sociology for the 2011-2012 academic year. Fellows may be in residence at their own University or visit Rutgers. Four Beyster Fellowships, including the Beyster Visiting Professorship, in the amount of $25,000 each will be offered. Several Kelso Fellowships in the amount of $12,500 each will be offered to scholars studying the Employee Stock Ownership Plan (ESOP) as well as approaches whereby individual citizens may have access to opportunities for capital acquisition. The Smiley Fellowships in the amount of $5,000 focus on economic history. The deadline for applications is January 31, 2011 with decisions by March 15, 2011. Submit a statement of no more than 1500 words describing the proposed research project including its current status and wider significance, a curriculum vitae and three letters of reference sent separately.
You can get more information about the fellowships, including how to apply, here.
NLRB Proposes New Posting Rule
The NLRB today issued a proposed rule that employers covered by the NLRA be required to post a notice to employees of their rights under the NLRA, similar to what they are required to post under Title VII and other EEO laws and the FLSA. From the press release,
[T]he Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”
Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily byemail or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.
The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectivelywith their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
The rule was originally proposed in a petition to the NLRB by Charles Morris (SMU, Emeritus) in 1993. To me, this seems a great idea and eminently reasonable. In fact, reading the proposal, I had one of those forehead-slapping moments, where I wondered why the NLRB had not been requiring this all along--or at least as long as the EEOC and DOL had required similar notices about rights under the laws they enforce. Of course, not everyone likely agrees. Board Member Brian Hayes dissented from the issuance of the proposed rulemaking, stating that he believed the NLRB lacks the statutory authority to promulgate or enforce this type of rule.
The NLRB invites comments either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. Additionally, a fact sheet and further information about the proposed rule is available here.
Hat Tip: Sharon Steckler
Proposed Rules Governing Notification of Employee Rights under the National Labor Relations Act
The Board submitted the new rule to the Federal Register as a Notice of Proposed Rulemaking, which provides for a 60-day comment period. More specifically, the rule would require employers to notify employees of their rights under the National Labor Relations Act (NLRA), including the rights to organize, collective bargaining, and engage in concerted activities for mutual aid and protection.
Here is a copy of the proposed rule.