OpenMarket: Labor and Employment

Over the weekend, the eleven-day strike by more than 30,000 Stop & Shop employees ended. The grocery chain announced that it “has reached fair new tentative agreements with UFCW Locals 328, 371, 919, 1445 and 1459, which represent our 31,000 associates in Massachusetts, Connecticut and Rhode Island.”

It has been difficult to gauge the impact of the landmark Supreme Court decision in Janus v. AFSCME. In this ruling, the Supreme Court held that forcing non-members to pay fees to a union as a condition of employment is a violation of the First Amendment. Predictions on the fallout from Janus ran the gamut. Some predicted a mass exodus, while other believed few public workers would resign their membership.

Progressives—Democratic elected officials, community organizers, and labor unions—incessantly disparage employers for failing to provide employees with a living wage, adequate time off, and quality health benefits. They claim corporate greed is the cause of the eroding middle class.

In a bleak take on the sharing economy, Atlantic writer Alexis C. Madrigal says it has created a “servant economy,” where sharing economy platforms provide “low-paying work that deliver on-demand servant services to rich people.” He likens this to the domestic service prevalent before the Second World War. This take gets things almost completely backwards.

National labor policy guarantees employees the right to form a union to promote their interests. There are clear, longstanding rules and procedures that provide a direct path to unionization. But what happens when workers decide they no longer desire union representation? For the majority of private-sector workers, there are also clear, formal rules on how to remove an unwanted union.

“When you’re hired as a teacher, you should be teaching,” said Judge Jose L. Fuentes of the New Jersey Court of Appeals. This statement is commonsense and uncontroversial. Unfortunately, commonsense is in short supply across the United States. A vast majority of states allow teachers, and other state and local employees, to perform union business instead of the job they were hired to do.

No worker should be compelled to join or pay dues or fees to a union just to get or keep a job. The U.S. Supreme Court reinforced this principle in Janus v. AFSCME, where the justices ruled that state and local public employees cannot be forced to financially assist a union as a condition of employment. “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning,” Justice Samuel Alito wrote in the majority opinion in Janus.

There is a new invented controversy involving the National Labor Relations Board’s joint employer rulemaking, which seeks to clarify the definition of joint employer liability for businesses engaged in numerous business relationships. Bloomberg reports that Democrats in the House Education and Labor committee are up in arms that the NLRB is planning on outsourcing to a third party the review of public comments on the agency’s proposed joint employer rule.

Last night, the Department of Labor’s (DOL) long-awaited proposed rule on overtime requirements was unveiled. The DOL intentionally wrote the rule to withstand legal challenge, and from the details it appears to be legally sound.

It has long been the law of the land that labor unions may only collect agency fees, or forced union dues, from non-union members to the extent that they are necessary to cover the costs of union representation and collective bargaining. In states without right-to-work laws, which prohibit unions from charging non-members agency fees, non-members have the right to object to paying for union activities that are not germane to collective bargaining.