NOLA unemployment better

Unemployment has drifted downward locally and statewide. While there is no job boom, things are better here then elsewhere. Article and charts here.

Young Workers Summit

Next week the AFL-CIO will host a Young Workers Summit in Minneapolis. Labor Secretary Hilda Solis will participate. AFL-CIO President Richard Trumka has made no secret of his priority of recruiting and involving younger workers.

Unintended Consequences

Steve Greenhouse writes in the New York Times (registration required) that last year's Citizen's United opinion has liberated unions from campaign reform restrictions and the result is reinvigorated outreach efforts. Money quote:

Before the Citizens United ruling, unions were banned from using dues money to reach out to nonmembers in political campaigns, but now unions plan to campaign among the 89 percent of Americans who do not belong to unions. Union officials have long complained that when their foot soldiers knocked on doors in, say, Milwaukee or Columbus, Ohio, they wasted huge amounts of time because they could visit only union members’ homes and often had to skip 90 percent of the houses. Now they can knock on every door on a block.

Persuader regulations opposed

The American Bar Association and the Chamber of Commerce of the United States have both filed comments with the Labor Department on the proposed revisions of the “persuader” regulations requiring extensive reporting of client confidential information when an attorney or firm provides advice to employers on labor relations matters. These persuader rules are a far more important issue than the required notice posting that has gotten so much coverage. These rules, if adopted, will make it impossible for a law firm to preserve client confidential information and be in compliance with the reporting and disclosure requirements.

Worst job creation decade

Its now official, the first decade of the 22nd century has been an economic disaster for many Americans. Earnings for middle class Americans have been been lagging since the 1970's, but since 2000, income has actually declined while inflation adjusted prices have risen. The Economic Policy Institute (EPI) has a more detailed report. Despite the lowest tax rates in 50 years, the United States is hemorrhaging good jobs, and the rate of job creation (any job creation) lags the loss. Where are the job creators? Over taxed they are not. Over regulated? Perhaps, but I tend to think job creation originates with demand. The engine for demand is the 95% of the population that either has nothing to spend or is too scared to spend it. A millionaire tax is too little to erase the deficit, and correspondingly, lowering taxes (again) for millionaires wont liberate job creators sufficient to make a dent in unemployment.

Hating Arbitration

Some attorneys really do not like the Supreme Court's direction on compelling arbitration of employment disputes. Check out "Separate but Unequal" from Cliff Palefsky. To give you an idea of the content, here's a money quote: "Mandatory arbitration is a cancer in our justice system based on a phony public policy and legal and factual fictions."

Bad Boss Monday

Working America, which is an affiliate of the AFL-CIO, recently sponsored a bad boss contest. Some of the winners are described here. Its enough to make you appreciate your own superior's eccentricities, well, maybe not. Its not surprising that a labor affiliate would sponsor this contest. The number one reason employees seek out union representation - mistreatment by their boss. Not wages, not benefits, not even oppressive working conditions drive employees to a union as much as bad treatment by the boss.

Almost half of respondents say unions have outlived their usefulness

48% of respondents in a Rasmussen survey see no further need for unions. Click through to the survey questions to get a better take on the results.

Age based hostile environment claim in Fifth Circuit

In Dediol v. Best Chevrolet, the Fifth Circuit has for the first time held a hostile environment claim under the ADEA is actionable. The Court reversed summary judgment for the employer both on the ADEA hostile environment claim as well as on a religious discrimination hostile environment claim.

Labor leader remembered

The Times Picayune today reported on the September 4th death of Victor Bussie. Bussie served as the head of the Louisiana AFL-CIO for 41 years until his 1997 retirement. The article provides an interesting overview of Bussie's career.

Trade Group sues to prevent new notice posting requirement

The National Association of Manufacturer's (NAM) has filed suit to compel the NLRB to suspend its new rule requiring employers to post a notice in the workplace concerning rights employees have under the National Labor Relations Act. It appears this is in keeping with the NAM's battle against regulations it maintains impede productivity and job creation. There is a world of difference between a environmental regulation and a notice posting requirement, but as they are both new regulatory restraint, the NAM is against them. The NLRB requirement requires the posting of a notice that the NLRB provides as a free download. Its hard to distinguish this posting requirement from other requirements under state and federal law which compel employers to post notices to inform employees of their rights. The real issue here is employers fear employees might learn something that they will act upon. There is a strong argument the new requirement, when assessed in the context of the new rules for representation elections the Board has proposed, presents an opportunity for the sophisticated employer who integrates appropriate discussions into a program of education for employees.

NRLA rights notice

The NLRB has released a downloadable version of the Notice employers are required to post advising employees of their rights under the NLRA. Our previous post on the requirements is here.

What is conficential?

The American Bar Association has issued a formal opinion on an attorney's responsibility to advise clients concerning "the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access." Attorneys representing employees should advise their client not to use their employer's computers, devices or e-mail to send confidential communications.

On jobs

"I reject the idea we have to strip away collective bargaining rights to compete in a global economy."

                                                                                          President Obama  9/8/11

Red meat for organized labor, but a little short on specifics.

Isn't it ironic

The EEOC has sued the Scooter Store (they sell mobility to those with limitations on walking) for disability discrimination.

Things change

During the introductory lecture in my labor law class, I point the students to Section 1 of the NLRA which contains findings and policies supporting passage of the Act. The statements are remarkable, even revolutionary when you think of the public's current perception of the role of government and its intrusive effect on private business. The section concludes declaring the public policy of the United States to be one supporting collective bargaining. The National Labor Relations Act fundamentally altered the role of government in regulating the process whereby organized labor negotiated with business the terms and conditions of private employment. In class, we discuss not only whether the NLRA would be passed today, we also discuss whether it would be deemed constitutional if considered res nova by the current Supreme Court. Long time blogger Michael Fox posted similar thoughts at Jottings by an Employment Lawyer. How different public sentiment has developed in response to the Great Recession, than it did to the Great Depression. 

YIKES!

James Hoffa, President of the Teamsters had some fighting words for the Right when he warmed up a labor crowd for President Obama in Michigan. There is a bit of a misquote involved.

Labor Day

The Department of Labor web site also has posted a history of labor Day.

Liebman responds to Board critics

The New York Times has a piece on former NLRB Chair Wilma Liebman responding to criticism of the Board.

Labor day

Time has a piece on 10 things you did not know about labor day, and some of them have nothing to do with the labor movement.

Union approval very partisan

Every year, just before labor day, Gallup polls the American public's attitude toward labor unions. 2010 post here. This year a few more Americans view unions in a slightly more favorable light (52%), up from a 2009 low of 48%. But the real story is the whopping 52 point differential between Democrats (78% favorable) and Republicans (26% favorable). Last year Republicans had a 34% favorable view.

New unit determination standards for nursing homes

In Specialty Healthcare (download here) the NLRB changed the standard for determining what is an appropriate bargaining unit in nursing homes. In so doing the Board claims to apply the traditional analysis as to what is an appropriate bargaining unit. This change will profoundly affect the ability for nursing homes to deal with union organizing activity. More after the jump

Dana undone

In 2007 the NLRB decided Dana Corporation, a thoughtful decision about how to safeguard employees rights to select their bargaining representative. In Lamons Gasket Co., (download here) the Board returns to its pre-Dana law which does not allow a challenge to voluntary recognition by dissident employees. There is always potential for collusive or abusive action in a voluntary recognition scenario (where an employer agrees to recognize a union without an election to determine majority status support for the labor organization). Dana provided a mechanism for a significant number of employees to challenge voluntary recognition by petitioning the NLRB to conduct a secret ballot election to determine whether the union actually represented an un-coerced majority of the employees. This was a pro-employee decision and a prototype for labor reform that avoids the EFCA albatross of eliminating secret ballot elections. Our previous posts are here and here. Essentially card check majorities would be valid, unless 30 percent of the affected employees petitioned for a secret ballot election within 45 days of being notified of voluntary recognition. While many Bush Board decisions altered labor law in ways that advanced employer interests to the detriment of labor, Dana was an enlightened attempt to protect employee rights.

Two Member NLRB Strategy

With Chairman Liebman leaving the NLRB, and Member Becker's recess appointment running out at the end of the year, some anti-union advocates are now urging Republican Member Bryan Hayes to resign. Why? In order to incapacitate the NLRB by reducing it to two members. In New Process Steel last year the Supreme Court held a two member Board lacks a quorum and cannot lawfully function. To me this is not a strategy, rather it would cynically exploit the ability to create temporary dysfunction, for questionable short term political objectives. But of course the real problem is many on the right don't like the National Labor Relations Act, believe it is unconstitutional (despite a Supreme Court case to the contrary) and want it gone. Although I teach labor law, my practice is one that represent's management interests and has been for 35+ years. Those who call for repeal of the NLRA think they would remove a regulatory barrier. In truth, many on labor's side might join in repeal because repeal would unleash economic weapons favoring labor that could reinvigorate certain strikes and secondary boycotts now made unlawful by the NLRA. Be careful about what you ask for.

Phyrric victories

What a Phyrric victory! City spends $407,000 investigating whether an ethics complaint against a school board member whose son took a $400 high school course for free. Ultimate result: ethics violation established by a 3-2 vote. School board member pays the $400.  Another public sector excess, yes, but this type of decsion-making afflicts the private sector too. Far too often we hear of enormous expenditures made by employers defending employment law cases. I know one example where a defendant spent into 7 figures on defense of an individual discrimination claim before the plaintiff won less than six figures, and had been willing to settle for about what the jury awarded. I often tell my defense clients liability is not the real issue in employment law cases, most of them can be won in Louisiana and Mississippi. Its the cost of defending the claim in court that is the economic adverse effect. Is there a duty to seek early settlement, in even limited liability cases. Yes.  A lot of times that suits the client's interests. But who determines the client's interests? Its one thing if the decider is the owner. But in most other situations a real issue occurs when the "decider" for settlement is the "decider" accused of the wrongdoing. Should shareholders and Boards demand an impartial assessment? Perhaps they should, particularly where the cost of defense of a five figure claim is north of seven figures.