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  • NLRB Denies Petition to Form College Athlete Union, for Now

    August 18, 2015 12:37 PM

    The National Labor Relations Board (NLRB) yesterday denied a petition by Northwestern University football players to form a union. While this is a rare show of restraint by a labor board that, under the Obama administration, has often acted like a pro-union advocate, the ruling is on such narrow grounds that it’s difficult to draw any broader conclusions from it.

    A ruling in favor of the Northwestern union petitioners would have affected all private schools in the National Collegiate Athletic Association’s (NCAA) top division, a mere 17 schools of 125. That raises the question: Would the Board have ruled differently if its decision were to apply across the board, or at least to the overwhelming majority of athletic programs?

    For more on the NLRB decision, see here.

  • The NLRB Declines Jurisdiction in College Athlete Unionization Case

    August 18, 2015 12:36 PM

    The National Labor Relations Board has declined the opportunity to rule on whether or not college athletes are employees and can therefore be unionized. The petition was brought by the College Athletes Players Association which desired election as the union for Northwestern University college athletes.

    CEI submitted an amicus brief in the case. In the brief, we pointed out the likely true motivation behind the push to unionize student athletes, and the problems it would cause for those students:

    [T]he United Steelworkers union is driving this whole initiative. The Steelworkers, one of the largest industrial unions in North America, are underwriting and financing the effort and have been trying to unionize students for a decade. The goal? Access to some of the millions of dollars associated with college sports. And Stanford, with its long and storied athletic history, is a prime target for the Steelworkers, with nearly 10 local union chapters in the area.

  • The Administration Is about to Upend American Business Practices

    August 13, 2015 7:45 AM

    It is probably the biggest change in American employment law since the National Labor Relations Act and its reform in the 1930s and ‘40s, but it could happen without the general public realizing it. The National Labor Relations Board (NLRB, a product of that 1930s legislation) is expected to rule any day now in a case that will affect thousands of businesses. Firms are bracing themselves for the fall-out.

    The case in point relates to Browning-Ferris Industries (BFI), which owns a recycling plant that hires employees from a staffing agency. The local Teamsters Union petitioned the NLRB to designate BFI as a “joint employer” of the workers alongside the staffing agency. Designation as a joint employer would mean that BFI would be liable for the employees’ working conditions alongside the staffing agency. That means they could be sued over contractual matters and working conditions.

    If the NLRB rules in favor of the Teamsters, it would have far-ranging effects for companies of all shapes and sizes. The start-up that employs a receptionist from a staffing agency would find it now “jointly employed” that receptionist. Your office that has cleaning staff come in from a different firm at night could easily find it jointly employing those cleaners.

    The whole American business model of contracting out non-essential services would be overturned overnight. Firms that have spent decades flattening their structures would be forced to vertically integrate. One employment owner told The Hill, “Every company will have to reexamine their business relationships… I’d rather be responsible for my own company than someone else’s.”

  • CEI Joins Coalition to Support Right-to-Work Protections in Missouri

    July 29, 2015 3:15 PM

    No individual should be forced to financially support an organization with which they disagree or risk penalty. However, in Missouri and 24 other states, private-sector employers and unions may agree to a contract provision known as a union security clause, which compels workers to pay union dues or lose their job.

    Currently, Missouri is considering becoming a right-to-work state, which would allow workers to opt-out of paying dues to a union they may not support without risk of termination.

    While worker freedom is the most important aspect of right-to-work protections, other benefits arise from such laws. In a recent study conducted by the Competitive Enterprise Institute, “Interstate Analysis of Right to Work Laws,” found that real personal income, over the duration the study analyzed (1977-2012), grew by 123 percent in the United States, but right-to-work states saw faster growth rate of 165 percent whereas non-right-to-work states only saw below average growth of 99 percent.

    With respect to Missouri, the study’s economic analysis showed that the Show Me State's estimated per capita income loss associated with not having a right-to-work law was $3,040.

    The Competitive Enterprise Institute along with 54 other organizations signed on to a coalition letter showing our support for right-to-work protections in Missouri.

  • New York State Mulling Minimum Wage Increase

    July 23, 2015 3:47 PM

    A few weeks ago, the New York Times ran an article asking, “It’s Summer, but Where Are the Teenage Workers?” It’s a good question:

    Since 2000, the share of 16- to 19-year-olds who are working has plummeted by 40 percent, with fewer than a third of American teenagers in a job last summer. Their share of the overall work force has never been this low, and about 1.1 million of them would like a job but can’t find one, according to the Bureau of Labor Statistics.

    The next paragraph begins, “Experts are struggling to figure out exactly why.” Over the course of more than 1,300 words, the article doesn’t once mention a major culprit: the minimum wage.

    The article even features a chart showing a pronounced decrease in teen employment closely tracking the most recent federal minimum wage increase, which phased in from $5.15 to $7.25 from 2007 to 2009. The start of the increase and its impact on teen employment began before the financial crisis made job-hunting more difficult for everyone else, too. In recent years, some cities and states have begun raising their local minimum wages above the federal minimum, helping to keep teen employment at historically low levels.

    The Times should look into commissioning a follow-up story for next summer, because the paper is now reporting that New York State is considering implementing a $15 hourly minimum wage for fast food restaurant chains, which heavily employ teens. Increasingly, they are also “employing” automated kiosks.

  • EEOC Legislates New Federal Ban on Discrimination Based on Sexual Orientation

    July 17, 2015 4:00 PM

    When Congress declines to pass a law that would expand an agency’s powers, the agency will sometimes respond by making up the law on its own. The Equal Employment Opportunity Commission recently did this, by adding a new protected class to federal employment laws, at the expense of America’s employers.

    Congress has never enacted a ban on private-sector sexual orientation discrimination, so the subject is governed largely by state or local law (most, but far from all, of America’s workplaces are covered by a state law or municipal ordinance banning sexual orientation discrimination).

    To the EEOC’s displeasure, a bill to prohibit sexual orientation discrimination at the federal level, the Employment Non-Discrimination Act, has repeatedly failed to pass Congress, in the face of questions about whether it is really needed (virtually all Fortune 500 companies have banned sexual orientation discrimination for years) or whether banning private-sector sexual orientation discrimination would cause problems for certain businesses (such as potentially triggering “hostile work environment” lawsuits against religious broadcasters, publications, or bookstores over workplace expression).

    So, the EEOC has decided to legislate a ban on sexual orientation discrimination on its own, declaring that all sexual orientation discrimination is a form of sex discrimination. “Allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission concluded in a decision dated July 15.

    Discrimination on the basis of sex is already banned by a 1964 law—Title VII of the Civil Rights Act—but while that law lists several types of discrimination that are forbidden—race, religion, sex, and national origin—it does not list sexual orientation. The EEOC concedes as much when it admitted that sexual orientation “is not” “explicitly listed in Title VII as a prohibited basis for employment actions.” Yet, in spite of this, the EEOC declares in its ruling that Title VII forbids sexual orientation discrimination, and that “allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex.”

  • Significant Labor and Employment Issues in FY 2016 Labor-HHS-Ed Appropriations Bill

    June 16, 2015 4:21 PM

    Stamped June 15, 2015 (5:55PM), the U.S. House of Representatives Appropriations Subcommittee Department on Labor, Health and Human Services, Education, and Related Agencies has produced a draft bill for Fiscal Year 2016 (FY16).

    Virtually every year this Labor-HHS-Ed bill faces significant challenges for individual enactment. However, every year the bill is enacted, albeit normally as part of a larger appropriations act.

    In every case, the initial draft of the bill sets the tone for the eventual enactment and frames the issues for debate.

    This initial FY16 draft contains the following significant verbatim provisions for increasing employment, bettering incentives for workers, reducing deadweight loss to the economy, augmenting workers’ income growth, and improving worker freedom:

  • Employment Effects of the NLRB's Joint-Employer Cases

    June 2, 2015 11:18 AM

    Following the script of the U.S. Department of Labor Wage and Hour Administrator David Weil in his book The Fissured Workplace, the National Labor Relations Board is pushing big businesses to hire people in-house rather than utilize small, specialized businesses, which would suffer. Weil’s theory is that bigger businesses are more sensitive about brand reputation and thus more susceptible to pressure from unions and trial lawyers. Using a line of cases concerning joint employment, the NLRB has specifically targeted such industries as franchising, trucking, contracting, temping, and outsourcing.

    If the NLRB were to get its way, job creation would falter for several reasons. First, franchising itself could be imperiled, and franchising creates jobs faster than other businesses do. Second, small business efficiency and innovation tailored to consumer tastes would be curtailed. Third, the NLRB states that it wants to make the “economic weapons” of pickets and strikes more available to unions—certain to impair commerce. And finally, trial lawyers would be able to sue an additional group of businesses, foisting more risk and cost on job creation. Job opportunities would surely suffer.

    One observed aspect of the loss of job opportunity is at the beginning of a career. In their new book DisinheritedDiana Furchgott-Roth and Jared Meyer point out, “[Y]oung people often use minimum-wage jobs as stepping stones to better careers. … If people cannot get their first job, they cannot get their second or their third.” The International Monetary Fund explains the scarring effect of early unemployment, “The earnings penalty can be as high as 20 percent compared with their peers who find employment early, and the earnings deficit can persist as long as 20 years.” For the young, obtaining that essential first job has huge financial ramifications for careers.

    The National Bureau of Economic Research expounds that the effect is toughest for the lowest rungs on the employment ladder: “[T]he bottom of the wage-and-ability distribution experience larger and more persistent losses.” The low-skilled and most needful are at greatest risk.

    Who else could be hurt by the NLRB? New American immigrants who are pursuing their first job in their new country.

  • Right to Work is Right for Missouri

    May 14, 2015 3:15 PM

    On May 12, Missouri took a great leap forward toward becoming the 26th right to work (RTW) state. First, the State Senate passed the bill 21-13. Then on May 13, the Missouri House sent the RTW bill to Governor Jay Nixon's desk with a vote of 92-66.

    Hopefully the below facts can persuade Gov. Nixon to get past partisan politics and do what is right for his state’s citizens by signing RTW into law. Further, he should take note that 54 percent of Missourians support RTW against only 34 percent opposed, according to a survey conducted by the Missouri Alliance for Freedom and former Missouri House Speaker Tim Jones.

  • President Again Makes False Claims about Supreme Court's Ledbetter Decision

    May 11, 2015 11:16 AM

    On April 15, President Obama once again made false claims about what the Supreme Court did in its decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007), insinuating that the Court set a deadline for suing over pay discrimination that expires before many employees could possibly discover the discrimination.

    He falsely claimed that the Supreme Court said it didn’t “matter” when Lilly Ledbetter learned of the pay disparity she unsuccessfully sued over, and that it ruled against her even though she explained that “I just found out” about the discrimination right before suing.

    In reality, Ledbetter admitted in her deposition that she knew of the pay disparity years earlier. Yet she waited until long after the deadline to sue. The Supreme Court specifically said in footnote 10 of its decision that it had “no occasion” to consider whether Ledbetter could have sued had she only just found about the discrimination shortly before suing, since Ledbetter never argued to the courts that she had just discovered the discrimination. If she had just found about the discrimination, her lawyers would have argued that the “discovery rule” applied to restart the deadline for suing, making her lawsuit timely, but they never did so.


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