Law Commons^™

Labour, Labour Law And Capitalist Rent-Seeking: Rentier Capitalism And Labour In Historical Perspective, Eric Tucker

All Papers

The rise of rentier capitalism in advanced capitalist countries has detrimentally affected large numbers of worker and impaired the efficacy of protective labour and employment laws. However, capitalist rent-seeking is not unique to rentier capitalism, but rather has taken a variety of forms over time. This chapter begins by exploring the evolving meaning of rent and changing practices of capitalist rent-seeking. It then considers the ways in which workers responded to those practices in both rent-rich and rent-poor sectors of the economy, including through the enactment of labour and employment laws appropriate to, but only partially successful in addressing labour …

California’S 2023 Legislative Cycle: Governor Newsom Provides Victories And Losses For The Labor Movement, Victoria Chan

GGU Law Review Blog

During the 2023 legislative cycle, the California Legislature sent more than 900 bills to Governor Gavin Newsom’s desk for his review. Of the 900 bills, thirteen bills were sponsored by the California Labor Federation (CLF) in support of major labor initiatives. The CLF is a coalition of 1,200 unions dedicated to protecting workers. The CLF indicated that this past legislative year was a “fantastic year for organized labor in the [California] State Legislature,” specifically, thirteen of its sponsored bills passed the California Legislature and arrived at the Governor’s desk for his review.

Below is a preview of two workers’ rights …

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

Articles

No abstract provided.

Should Labor Abandon Its Capital? A Reply To Critics, David H. Webber

Faculty Scholarship

Several recent works have sharply criticized public pension funds and labor union funds (“labor’s capital”). These critiques come from both the left and right. Leftists criticize labor’s capital for undermining worker interests by funding financialization and the growth of Wall Street. Laissez-faire conservatives argue that pension underfunding threatens taxpayers. The left calls for pensions to be replaced by a larger social security system. The libertarian right calls for them to be smashed and scattered into individually-managed 401(k)s. I review this recent work, some of which is aimed at my book, The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon, …

Graduate Student Employee Unionization In The Second Gilded Age, William A. Herbert, Joseph Van Der Naald

Publications and Research

In debates on the future of work, a common theme has been how work became
less secure through the denial of employee status. Though much of the attention
has focused on other industries, precarity has also affected those working in
higher education, including graduate student employees, contributing to what is
now called the “gig academy.” While universities have reassigned teaching and
research to graduate assistants, they have also refused to recognize them as
employees. Nevertheless, unionization has grown considerably since 2012, most
significantly at private institutions. Utilizing a unique dataset, this chapter
demonstrates that between 2012 and 2019, graduate student …

Collective Representation And Bargaining For Self-Employed Workers: Final Report, Sara Slinn

Commissioned Reports, Studies and Public Policy Documents

This report seeks to identify and discuss feasible models for collective representation and bargaining for self-employed contractors in the federal jurisdiction. The term “self-employed contractors” refers to workers who would be classified as “independent contractors” under the Canada Labour Code (CLC) Part I and, consequently, be excluded from the ambit of CLC collective representation and bargaining provisions. The study utilizes fieldwork, in the form of interviews and focus group discussions, in four sectors of interest, namely, road transportation, broadcast media, technology, and telecommunications, in order to explore and assess potential models for statutory collective representation and bargaining for self-employed workers. …

Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel

All Faculty Scholarship

With increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building …

A Different Set Of Rules? Nlrb Proposed Rule Making And Student Worker Unionization Rights, William A. Herbert, Joseph Van Der Naald

Publications and Research

This article presents data, precedent, and empirical evidence relevant to the National Labor Relations Board (NLRB) proposal to issue a new rule to exclude graduate assistants and other student employees from coverage under the National Labor Relations Act (NLRA). The analysis in three parts. First, the authors show through an analysis of information from other federal agencies that the adoption of the proposed NLRB rule would exclude over 81,000 graduate assistants on private campuses from the right to unionize and engage in collective bargaining. Second, the article presents a legal history from the past half-century about unionization of student employees …

Broader-Based And Sectoral Bargaining Proposals In Collective Bargaining Law Reform: A Historical Review, Sara Slinn

All Papers

Labour legislation regulating Canada’s private sector has incorporated forms of broader-based or sectoral certification and bargaining (BBB) in varying degrees for decades, particularly in British Columbia and Quebec. However, BBB had not been the subject of significant post-war labour law reform discussion until the 1990s. This decade saw a wave of interest in introducing BBB arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later …

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

After Janus, Martin Malin, Catherine Fisk

All Faculty Scholarship

The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action …

The Other Janus And The Future Of Labor’S Capital, David H. Webber

Faculty Scholarship

Two forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

Union Improvisation: The Parent Of Social Justice, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Rwu First Amendment Blog: Michael J. Yelnosky's Blog: Janus V. Afscme And "Weaponizing The First Amendment 06-30-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

The Motive Power In Public Sector Collective Bargaining, Martin Malin

All Faculty Scholarship

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …

Collective Struggles: A Comparative Analysis Of Unionizing Temporary Foreign Farm Workers In The United States And Canada, Robert Russo

All Faculty Publications

The use of temporary foreign migrant workers in the labor sector is part of a vibrant political and legal discussion in both the United States and Canada. Current reforms of temporary foreign worker programs in both countries call for an analysis of this workforce. This article focuses on documented temporary foreign workers performing agricultural labor in both countries. It is a comparative study of alleged violations of documented temporary foreign farm workers' rights relating to unionization in the United States and Canada.

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Faculty Scholarship

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Questions, Questions: Has Weber Had An Impact On Unions’ Representational Responsibilities In Workplace Human Rights Disputes?, Claire Mummé

Law Publications

This essay attempts to put forward a research agenda for properly evaluating the changing nature of unions’ human rights representational obligations since Weber. I begin by investigating two legal questions: first, whether unions are held to a more stringent duty of fair representation (DFR) standard in regards to members’ discrimination grievances than prior to Weber and Parry Sound, and second, whether there has been a broadening of the concept of union discrimination under human rights codes, such that unions may be held liable for failing to bring forward discrimination grievances. With the legal picture in place, I then set out …

The Winds Of Changes Shift: An Analyis Of Recent Growth In Bargaining Units And Representation Efforts In Higher Education, William A. Herbert

Publications and Research

This article analyzes data accumulated during the first three quarters of 2016 regarding completed and pending questions of representation involving faculty and student employees in higher education. It is part of a larger and continuing National Center research project that tracks faculty and graduate student employee unionization growth and representation efforts at private and public institutions of higher learning since January 1, 2013. The data presented in this article demonstrates that the rate of newly certified units at private colleges and universities since January 1, 2016 far outpaces new units in the public sector. There has been a 25.9% increase …

Criminal Labor Law, Benjamin Levin

Publications

This Article examines a recent rise in civil suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In …

Criminal Labor Law, Benjamin Levin

Scholarship@WashULaw

This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this …

Newsroom: Yelnosky On State Pension Lawsuit, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Do I Have To Cross The Picket Line?, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

Refusing to cross a lawfully established picket line is protected by the National Labor Relations Act. You have the legal right not to cross a picket line in solidarity with your own union, out of sympathy for workers from another union, or just to avoid confrontation. By refusing to cross a picket line while on duty you are essentially engaging in a strike in sympathy with the picketing workers. Refusing to cross a picket line is a legally protected act. When you approach a picket line you may be asked to honor the picket line. Politely asking someone not to …

Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges

Law Faculty Publications

This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might look …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

Undermining Or Promoting Democratic Government?: An Economic And Empirical Analysis Of The Two Views Of Public Sector Collective Bargaining In American Law, Kenneth G. Dau-Schmidt, Mohammad Khan

Articles by Maurer Faculty

No abstract provided.

Citizenship At Work: How The Supreme Court Politically Marginalized Public Employees, Ruben J. Garcia

Scholarly Works

Collective bargaining by public sector employees has been the subject of recent heated debates in the state legislatures of Wisconsin, Michigan, Ohio, and Indiana. The right of public sector employees to freedom of association, collective bargaining, and the right to participate in politics are among the “citizenship rights” of public employees. In many states, however, the citizenship rights of public employees are under threat both in state legislatures and in the courts. Paradoxically, the ability of public sector employees to change legislation has been hampered over the years by Supreme Court decisions, making it more difficult to organize politically by …

Union Dues In The Public Sector: Legislative Changes And Legal Challenges, Ann C. Hodges

Law Faculty Publications

The economic crisis that began in 2008 led many states and localities to look for ways to reduce labor costs, which form a substantial portion of government budgets. Some state legislatures focused on collective bargaining laws, with Wisconsin being the most high profile example. Along with the restrictions on bargaining, a number of states moved to limit the collection of union dues. The limitations were not across the board, but primarily directed at either political expenditures of unions or at particular unions, most commonly education unions. Not surprisingly, the laws enacted were immediately subjected to legal challenge sinceunions, like every …