In strike situations, the law can wind up getting flipped on the question of when an employer may or must dismiss an employee for racial slurs that create a hostile environment. An Eighth Circuit panel in Cooper Tire v. NLRB, over a dissent from Judge C. Arlen Beam, approved a court’s decision overturning an arbitrator’s ruling and reinstating the offending worker who had yelled the slurs at replacement workers. More: Terry Carter, ABA Journal.
House members introduce “Save Local Business Act (H.R. 3441), which would restore the traditional joint employer standard that the NLRB upended and modifies the definition of joint employer under the Fair Labor Standards Act to be consistent with the definition under the National Labor Relations Act.” [Trey Kovacs, CEI, Connor Wolf/Inside Sources Ben Gitis, American Action Forum, earlier on Browning-Ferris and joint employer standard]
- Chicago and Cook County paid sick leave ordinances spell “major headaches” for employers [Kimberly Ross and Craig Thorstenson, Ford Harrison]
- “DoL Withdraws Joint Employer Guidance” [Kim Slowey/ ConstructionDive, Catherine Strauss and Tami Earnhart, earlier here, etc.]
- How South Dakota came to deregulate hair braiding [John Hult, Sioux Falls Argus-Leader]
- Emmanuel Macron has big plans, very much including reform of France’s deeply un-libertarian labor law [Sylvain Cypel, New York Review of Books]
- State of play at NLRB on employees’ taping things: “You can still limit recordings in your workplace, as long as you don’t ban all recordings outright.” [Janette Levey Frisch]
- Over business protests, NYC’s left-leaning council and mayor keep enacting union-backed burdens on employers [Connor Wolf, earlier; related here, here, here, etc.]
“It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) dashed that hope.” [Jon Hyman] More: Nixon Peabody, Eric Goldman.
- New York City embarks on extensive new regulation of freelance work [Jennifer A. Williams, Ford Harrison]
- “Maryland Decriminalizes Unlicensed Barbering; Jacks Up Fines for Unlicensed Barbering” [Eric Boehm, Reason] “A New Jersey Bill Protects Pool Owners from Low Prices” [Shoshana Weissman, NRO on licensing of pool/spa service contractors and installers]
- “Lawsplainer: How The Seventh Circuit Decided That Sexual Orientation Discrimination Violates Federal Law” [Ken at Popehat, earlier here, here, and here]
- New Jersey taxpayers pay $100 million+ a year to resolve public worker lawsuits [Mark Mueller, NJ.com]
- “How the Fair Labor Standards Act Hurts Women” [Heather Owen/Constangy Brooks, thanks for mention] More on comp time: Diana Furchtgott-Roth, WSJ MarketWatch; Connor Wolf, Inside Sources.
- Browning-Ferris at the NLRB: “Predictable, Uniform Standard Needed for Who Is a Joint Employer” [Michael Lotito and Missy Parry, WLF, earlier here, here, here, here, here, and here]
My chapter on labor and employment law in the new 8th Edition Cato Handbook for Policymakers has caused a riffle or two of reaction, what with its proposals to repeal the NLRA, ADEA, FMLA, and a bunch of other laws (and that’s just the start, really). Robin Shea and Jon Hyman both respond with posts on the theme of what would happen if they ran the world, could push a button, or were monarch for a day. Their responses are good-tempered in both agreement and disagreement, which cannot be said for all the corresponding fun had once the list started circulating over on Twitter.
If my chapter doesn’t manage to flood the outrage zone completely for committed supporters of current law, the handbook’s chapter on the minimum wage can help provide further stimuli. It’s written by Thomas Firey.
- “Labor law in America has reached the absurd point where the NLRB is taking the position that a company can’t tell its employees to have a positive attitude” [Ira Stoll on Trader Joe’s controversy, following on T-Mobile case last April, earlier on predecessor 2014 decision in Hills and Dales General Hospital]
- Judge Janice Rogers Brown, writing for D.C. Circuit, rips NLRB for “abusive tactics and extremism.” orders it to pay employer’s attorney fees [Jon Hyman, David Leishman and Seth Borden, McGuire Woods Labor Relations Today (citing Board’s “nonacquiescence” policy), opinion in Heartland Plymouth Court MI, LLC v. NLRB]
- Quoting John Ross’s Short Circuit: Illinois telephone company “may not have violated the rights of striking worker (who allegedly followed a non-striker onto the highway, cut him off, slowed down, and did not allow him to pass) by firing her, says the D.C. Circuit. Concurring in her own opinion, Judge Millett reprimands the NLRB for long countenancing strikers’ sexually and racially demeaning behavior.” More on Millett’s concurrence in Consolidated Communications v. NLRB: Jon Hyman, and more on the case itself from the U.S. Chamber;
- Also quoting Short Circuit: “After discussions with NLRB, Norwood, Mass. car dealership revises employee handbook. NLRB: The new dress code, which prohibits some employees from wearing ‘pins, insignias, or other message clothing,’ still restricts labor rights. First Circuit: Just so. Dissent: Pity employers who want their employees to look nice. “[T]he Board and the courts have lured businesses into a legal bog.'”
- Congress hasn’t passed ENDA. Will courts approve EEOC’s scheme of cobbling it together virtually from other legal materials? [ABA Journal, Will Baude and more, Eugene Volokh on Seventh Circuit argument]
- California agricultural-labor law creates a right to trespass for union organizers. Help, Ninth Circuit! [Ilya Shapiro and Frank Garrison]
- “Apprenticeships: Useful Alternative, Tough to Implement” [Gail Heriot, Cato Institute Policy Analysis]
- “Hiring Without Headaches – A Possibility or Fantasy?” [Daniel Schwartz on President Obama/Stephen Colbert “job interview”]
- Employee misclassification as ULP: Obama NLRB “is now basically creating unfair labor practices out of thin air” [Jon Hyman]
- In the mail: Jeb Kinnison, “Death by HR: How Affirmative Action Cripples Organizations” [Amazon/author’s site]
- Now, for a change of pace, a less critical view of the Obama NLRB and its legacy [Andrew Strom, On Labor, parts one and two]
- How much flexibility is there in the special California constitutional law doctrine forbidding even prospective cuts (i.e., of not-yet-earned benefits) to public employee pensions? [Sasha Volokh, earlier]
- Want or need to contract out of the rules set by Seattle’s new worker-scheduling ordinance? You’ll have to unionize. Cute, no? [Bruce M. Cross et al., Perkins Coie] Also in Seattle: ostensible safety initiative aims to force hotels to unionize, would require blacklisting of guests even absent legal complaint [Carla Murray, CrossCut]
- “NLRB GC now wants to legalize intermittent and partial strikes” [Michael VanDervort]
- Boston city hall to private firms: nice little outfit you got there, shame if it didn’t unionize [Steve Malanga, earlier here, here on alleged extortion scheme]
- Less a university and more a shop floor: NLRB ruling on teaching/research assistants did more harm than good [Jon Hyman, earlier here, here]
- NLRB makes it as quick and easy as it can for workers to join a union. But should they wish instead to leave… [Diana Furchtgott-Roth]
- “Will NLRB’s New ‘Joint Employer’ Standard Discourage Corporate Social Responsibility Initiatives?” [Seth Borden]
Another huge ruling, as NLRB hurtles leftward at topmost speed during these final Obama months [Inside Higher Ed; Connor Wolf, Inside Source; Jarad Lucan via Daniel Schwartz] “Bringing a union into the mix could interfere with the primary purpose of the student’s relationship with the school: education. As dissenting NLRB member Philip Miscimarra writes, employers subject to NLRB jurisdiction may be required to disclose details of sexual harassment investigations to the union. Universities may also be required to tolerate ‘outrageous conduct’ by students, in their roles as unionized employees, which would otherwise violate the schools’ community standards.” [Preston Cooper, Forbes]
P.S.: No, they’re not done: “NLRB Likely To Drop More Pro-Union Rulings By End Of August” [Daniel Fisher]