Category Archives: Employment

Harvard Law & Policy Review Labor Law Reform Symposium

Labor Law Reform Symposium

Charlotte Garden, The Seattle Solution: Collective Bargaining by For-Hire Drivers & Prospects for Pro-Labor Federalism

Jose Garza, Outrunning the Devil: Considering the Implications of Relaxing the NLRA’s Preemption Regime for Working Texas Families

Kate Andrias, Social Bargaining in States and Cities: Toward a More Egalitarian and Democratic Workplace Law

Seema Patel and Catherine Fisk, California Co-Enforcement Initiatives that Facilitate Worker Organizing

Wilma Liebman, Does Federal Labor Law Preemption Doctrine Allow Experiments with Social Dialogue?

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Op-ed: “Inequality is Feeding America”

Op-ed: Jim Hightower, Inequality is Feeding America, CommonDreams, Jan. 3, 2018.

New Article: “The Right to Strike”

New Article: James Gray Pope, The Right to Strike, Boston Review, 2017. Abstract below:

This essay led off a Boston Review Forum featuring responses from Cynthia Estlund, Isabelle Ferreras, Janice Fine, Bill Fletcher Jr., Alicia Garza, Alex Gourevitch, Thomas A. Kochan, Sophia Z. Lee, Stephen Lerner, Staughton Lynd, Bob Master, and Andrea Dehlendorf with Dan Schlademan. Posted here is the original essay, with footnotes added, followed by the authors’ reply to the responses.

The essay submits that (1) American labor law blocks workers from exercising the rights to strike, to organize, and to act in solidarity; (2) largely as a result, Taft-Hartley “labor organizations” have declined steadily for more than half a century, through Republican and Democratic administrations alike; (3) before it is too late, unions and other workers’ organizations should prioritize the fundamental rights to strike, organize, and act in solidarity in all phases of movement activity; (4) instead of attempting to tweak the Taft-Hartley model, proponents of workers’ rights should seek long-term, fundamental change including the replacement of exclusive representation with a system that fosters worker freedom and permits broad solidarity. The reply discusses a number of important points raised by the respondents.

New Article: “Unmarked? Criminal Record Clearing and Employment Outcomes”

New Article: Jeffery Selbin, Justin McCrary & Joshua Epstein, Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Criminal L. & Criminology (2017). Abstract below:

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We study a random sample of participants in one such program to analyze the impact of the record clearing intervention on employment outcomes. Using methods to control for selection bias and the effects of changes in the economy in our data, we find evidence that: (1) the record clearing intervention boosts participants’ employment rates and average real earnings, and (2) people seek record clearing remedies after a period of suppressed earnings.

More research needs to be done to understand the durability of the positive impact and its effects in different local settings and labor markets, but these findings suggest that the record clearing intervention makes a meaningful difference in employment outcomes for people with criminal records. The findings also suggest the importance of early intervention to increase opportunities for people with criminal records. Such interventions might include more legal services, but they might also include record clearing by operation of law or another mechanism that does not put the onus of unmarking on the person with a criminal record.

New Article: “Better than Basic Income? Liberty, Equality, and the Regulation of Working Time”

New Article: Matthew Dimick, Better than Basic Income? Liberty, Equality, and the Regulation of Working Time, 50 Indiana L. Rev. 473 (2017). Abstract below:

Basic income has attracted the attention of academics, policy makers, and politicians around the globe. Basic income—a no-strings-attached cash transfer made to all citizens of a country, rich or poor—has been lauded as a plan to eliminate poverty, reduce income inequality, redress imbalances in the labor market, remedy the impending problem of mass technology-induced unemployment—the “robot apocalypse”—and make possible meaningful lives for those otherwise dependent on menial work in the labor market. It has also been proposed as an efficient, nonpaternalistic, and stigma-free alternative to existing welfare state policies. This Article compares basic income to an alternative policy proposal: the regulation of maximum working hours in the labor market. This Article contends that on nearly all of these virtues, working-time regulation does better than, or at least as well as, basic income. In particular, working-time regulation makes “free time” available to a broader array of individuals, also addresses technological unemployment, and is much more conducive to pro-environmental policies. Most importantly, it is more deeply egalitarian than basic income, not only addressing income inequality but social inequality, as well. Although basic income and working-time regulation are not necessarily incompatible—indeed some have advocated the adoption of both policies—there may be other factors that effectively render them policy substitutes. Specifically, not only is working-time regulation more complementary to existing welfare-state policy than is basic income, but—already in existence in the U.S. and most other developed countries—it also does not face the challenges of political and economic feasibility that confront basic income. Thus the choice and comparison is a compelling one, of which legal, policy, and tax scholars should take note.

New Article: “The Food We Eat and the People Who Feed Us”

New Article: Stephen Lee, The Food We Eat and the People Who Feed Us, Wash. U. L. Rev. forthcoming 2017. Abstract below:

Food justice scholars and advocates have made a simple but important point: for all the attention we pay to the food we eat, we pay far too little attention to the people who feed us. But can law play a role in directing consumer attention to labor-related issues? Traditional food law paradigms provide at best incidental benefits to food workers because these types of laws typically rely on transparency and disclosure schemes that serve narrow consumer-centric interests. An increasing number of laws attempt to disseminate information about the working conditions of the people who pick, process, and produce our food so that consumers can also consider the ethical and moral consequences of their food choices. In assessing this attempt to rebrand labor enforcement in consumer protection terms, this Article does two things. First, this Article identifies the conditions under which such schemes are most likely to succeed. Regulators should target food markets characterized by relative consumer wealth, norm consensus regarding which outcomes are desirable, and an established intermediation infrastructure to give disclosure laws the best chances for improving labor conditions along the food chain. Even where these conditions exist, a second point this Article makes is that disclosure laws should supplement, not supplant, traditional labor enforcement strategies that rely on worker-initiated complaints. This is because certain values, like autonomy, equity, and community standing are best vindicated by the workers themselves instead of by others (like consumers) on their behalf. Crowding out workers from the enforcement process creates the risk of exacerbating the structural forms of inequality that define work across the food system.

New Article: “Agency Law and the New Economy”

Loewenstein, Mark, Agency Law and the New Economy (November 1, 2017). 72 Bus. Law. 1009 (2017); U of Colorado Law Legal Studies Research Paper No. 17-18. [Abstract below]

This article considers the status of workers in the “new economy,” defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. Similarly, employees of a staffing company may consider themselves employees of the client company and, therefore, entitled to negotiate collectively with the client company and receive the same benefits as the client company’s employees, yet the client company may take the position that it is not the employer or even a “joint employer” of such workers. Courts considering the claims of these workers typically look to the common-law definition of “employee,” as legislatures have typically neglected to define “employee” when drafting laws to protect employees. The resulting litigation has generated judicial decisions that are difficult to parse and often treat workers unfairly. This article takes a fresh approach to this problem, considering the shortcomings of the common-law definition and suggesting solutions.

Blog Post on Tax, Disability and Work: “Crip the Code”

Blog Post: Francine Lipman, Crip the Code, Surly Subgroup Blog, Nov. 26, 2017.

Op-Ed: “For many older Americans, the race race is over. But inequality isn’t. “

Peter Whoriskey, For many older Americans, the race race is over. But inequality isn’t., Washington Post, October 18, 2017. [“While the rat race ends with retirement, one of its principal features extends well past a person’s last day of work.”]

New Article: “Meeting Taxpayers Where They Live: Improving US Refundable Credits While Reflecting the Lives of the Working Poor”

New Article: Leslie Book, Meeting Taxpayers Where They Live: Improving US Refundable Credits While Reflecting the Lives of the Working Poor, forthcoming J. Tax Administration (SSRN Oct. 2017). Abstract below:

This paper looks at the American experience in using tax law to deliver benefits to low and moderate-wage workers. First, examining two recent court cases where individuals improperly claimed the earned income tax credit, this paper explores some of the challenges to both taxpayers and tax administrators associated with using the tax system to deliver benefits that are dependent on levels of attachment to children and the presence of earned income. The paper then explores two approaches to improve compliance. One approach is a proposal in a recent Heritage Foundation policy briefing recommending that only parents with legal custody of their children should be entitled to receive the earned income tax credit. The state of California, in adopting the other approach, excludes self-employment income from its definition of earned income in its state earned income tax credit. Both measures fail to reflect characteristics of the lives of the working poor, including a growing reliance on multi-generational living arrangements and shared care of children and a surge in nontraditional employment associated with the gig economy.

Despite the problems with the proposals, they reflect genuine compliance concerns. This paper concludes with recommendations to address those compliance concerns that will likely serve the goal of improving integrity, while also ensuring the law and administration of the law reflects the lives of lower-income Americans who increasingly rely on the tax system to meet basic needs and support their families.