- After Harris v. Quinn, states and unions begin dropping mandatory dues collection for home health carers [Michigan Capitol Confidential, Fox; my two cents at Free State Notes on Maryland’s heel-dragging]
- Macy’s in suburban Boston is opening target for NLRB bid to install gerrymandered “micro-unions” [The Hill, earlier here, etc.]
- Federal contractors to fork over pay demographics, the better to be sued [Department of Labor]
- Speaking of the barrage of executive orders coming out of the White House, it’s beyond silly to pretend that all the costly new employment mandates will promote “efficiency and cost savings” [Coyote]
- “Gay Christian conservative employee sues gay bar for sexual, religious harassment” [Volokh]
- “House Hearing Highlights Problems in the Fair Labor Standards Act” [Alex Bolt]
- “Forcing Kids to Do Chores Not a Federal Crime” [Courthouse News, Volokh]
Posts Tagged ‘National Labor Relations Board’
NLRB claims franchisors are joint employers
In this Cato podcast (7:01), I talk with Caleb Brown about the National Labor Relations Board’s groundbreaking attempt last week to tag McDonald’s with liability for labor violations found at its independently owned local operators. (Reportage: Steven Greenhouse, NYT; Jon Hyman; Diana Furchtgott-Roth/RCP) It’s a drastic departure from current law that would carry implications for outsourcing more generally: a food company that contracts with independent farmers to grow a particular crop, for example, might wind up being liable for the farmers’ treatment of farm workers, a company that outsources its cafeteria, vehicle maintenance, or janitorial services to outside vendors might become legally responsible for ensuring the labor-law compliance of those contractors, and so forth.
The McDonald’s case is the first of what is expected to be multiple cases filed by the NLRB’s general counsel (akin to a prosecutor), and the full Board has not ruled on the resulting complaints, although given the union-friendly role of the Obama NLRB that is likely to be little more than a formality. The initiative will inevitably land in the courts, which have not always been friendly toward Obama regulatory adventurism, and perhaps eventually the Supreme Court.
One consequence, successful or otherwise, if this ploy works: by treating legally distinct entities that contract with each other as if they were parts of a single vertically integrated enterprise, progressive labor law thinkers will create an incentive for giantism to become more real, by giving fast-food franchisers, for example, legal reason to move toward company-owned rather than independently-owned store arrangements. Not for the first time, the law would mow down the ranks of mid-sized businesses in favor of large or nothing. Commentary from others: Megan McArdle; Stephen Bainbridge; Catherine Fisk, On Labor (supporting the idea); Steve Caldeira, The Hill; Alex Bolt. And a relevant House hearing.
Labor roundup
- California tenure lawsuit exposes rift between Democratic establishment and teachers’ union [Sean Higgins, Washington Examiner]
- NLRB pushing new interpretation to sweep much outsourcing into “joint employment” for labor law purposes [Marilyn Pearson, Inside Counsel]
- Restaurant “worker centers” campaign against tipping. Perhaps a sign their interests not fully aligned with waitstaffs’? [Ryan Williams, DC]
- NLRB’s edict against non-union employers’ confidentiality policies emblematic of its activist stance lately [Karen Michael, Times-Dispatch]
- Three public sector unions spent $4.3 million on Connecticut state political activities in 2011-2013 cycle [Suzanne Bates, Raising Hale]
- Sen. Lindsey Graham prepares funding rider to block NLRB “micro-union” recognition [Fred Wszolek, background]
- “Table Dance Manager” glitch alleged: “Exotic dancers + allegedly malfunctioning software = Fair Labor lawsuit” [Texas Lawyer]
NLRB: law protects employee’s right to curse out boss
In not just one recent case, but two:
* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today]
* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]
Compare the separately developed field of “hostile-environment” law, in which the employer may be held liable for years’ worth of back pay if it does not separate from the workplace an employee who repeatedly confronts a co-worker with belligerent and profane abuse (& Scott Greenfield).
Labor and employment roundup
- “NLRB Could Ease Unionization of Franchisees” [Bill McMorris, Washington Free Beacon]
- Wait, you mean self-harm is something you can overdo? “Can the Minimum Wage Be Too High?” [NYT “Room for Debate”] “Correcting Harold Meyerson’s Math On The Minimum Wage” [Tim Worstall]
- Lawyers can help ascertain when lip-licking in workplace rises to level of harassment [Fox Rothschild]
- Pending bill in Illinois would do away with workers’ comp’s longstanding immunity for safety consultants [Kevin Martin, State Journal-Register]
- Best and worst states legally for staffing business [Leslie Stevens-Huffman, Staffing Industry]
- “You can have your strong public employee unions, ‘prevailing wages’ and restrictive work rules, or you can have nice infrastructure. New Yorkers have (perhaps unknowingly) made their choice.” [Scott Sumner via Arnold Kling]
- Does time spent driving to employer-mandated anger-management courses count as compensable “hours worked” under FLSA? [Bryan Symes, Ruder Ware]
Labor roundup
- “Coming to Your Workplace Soon? Union Organizing Efforts Via the Company’s Email System” [Daniel Kaplan, Foley & Lardner]
- “Pennsylvania Unions Still Exempt from Harassment [Law], Continue Harassing with Impunity” [Trey Kovacs, Workplace Choice, earlier here, here, here]
- Music production gravitates to right to work states attract in part because union musicians less afraid of discipline for taking gigs there [Variety on union’s dispute with videogame-composer member]
- New definition of “nationwide strike”: protesters show up at a few Wal-Marts, few workers pay attention [On Labor]
- Presently constituted NLRB and U.S. Department of Labor are zealous union partisans, not impartial arbiters [Alex Bolt]
- “Workers filing wage-and-hour lawsuits under Labor Act at record pace” [Crain’s Detroit Business]
- “Despite repeated failures, Card Check still top Big Labor priority” [Sean Higgins, Washington Examiner]
NLRB: employer policy may not prohibit negativity and gossip
In an April decision, the National Labor Relations Board found largely unlawful a hospital’s employee handbook policy as follows:
…11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
16. We will represent [the hospital] in the community in a positive and professional manner in every opportunity.
21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.
The reason? Under NLRB doctrine, in both non-union and union workplaces, negative discussion of managers and other co-workers could count as “protected activities” linked to the potential for concerted labor action.
[Jon Hyman, Ohio Employer’s Law Blog, on the April case of Hills & Dales General Hospital (PDF)]
Raising the cost of advocacy
Washington, D.C. intern hit with NLRB subpoena over blogging work for policy group critical of unions [Tucker Nelson, National Review]
Labor and employment roundup
- Resistance mounts to NLRB’s revived “ambush unionism” plans [Epstein Becker Green, Fred Wszolek, three members of Congress/Washington Times, earlier]
- Fifth Circuit: employer’s blanket “don’t talk about company personnel or financial matters” policy violates NLRA [Texas Employment Law Update, Jon Hyman]
- Minimum wage: “Silver Bullet or Poisoned Chalice?” [U.K.-based Institute of Economic Affairs] Nonmonetary impact of minimum wage hikes found “not only in reduced fringe benefits but in increased work demands and decreased job training”” [Richard McKenzie/NCPA via Tyler Cowen]
- Connecticut lawmakers press for pro-labor-union curriculum in public schools [AP/Albany Times-Union]
- Labor/employment, tougher regulatory enforcement top business concerns in new Norton Rose litigation trends survey;
- Incumbent practitioners, not consumers, nearly always the ones pushing for tougher occupational licensure [David Stokes’s Missouri testimony, Show-Me Institute, PDF]
- Court again upholds Wisconsin Gov. Scott Walker’s public sector labor legislation against challenge [Journal-Sentinel, earlier here, etc.]
Labor and employment roundup
- “Will ‘Microaggressions’ Make Their Way Into Employment Discrimination Cases? Have They Already?” [Daniel Schwartz]
- More phone and pen: Obama executive orders will forbid federal contractors from retaliating against employees who discuss pay with colleagues, direct DoL to require compensation data from contractors based on sex, race [AP, White House]
- List of best and worst states for employee lawsuits (from employer’s perspective) includes some surprises, although California’s status as worst isn’t one of them [Insurance Journal] $20K to fend off suit “for harassment and intimidation by her manager — when the manager was her sister” [Coyote; sequel to “Ventura County blues,” on which earlier here and here]
- Wage/hour activists step up pressure for federal enforcement, more detailed pay stubs to combat off-clock work, alleged misclassification [ABA Journal]
- “A National Minimum Wage Is a Bad Fit for Low-Cost Communities” [Andrew Biggs and Mark Perry, The American] “Immigration, Eugenics, and the Minimum Wage” [Matt Zwolinski, Bleeding Heart Libertarians]
- Court decision may amount to end run enactment of something like ENDA minus the legislative compromises and exceptions [Tamara Tabo, and thanks for link to “good reasons” for opposition; a second view from Jon Hyman]
- “DOL (Department of Labor) Persuader Rule Undermines Attorney-Client Privilege, Attorney Generals Say” [Howard Bloom and Philip Rosen (Jackson Lewis), National Law Review, earlier]