Supreme Court Roundup

Jonathan R. Harkavy, of Patterson Harkavy in Greensboro, N.C., has just posted a very useful (and thorough) review of the labor and employment docket from the Supreme Court’s last Term.  The piece is available through SSRN.

Andy Stern on Universal Basic Income

Andy Stern, former president of SEIU, released a book today in which he argues for a universal basic income in the United States.  Raising the Floor focuses on the impact of new technologies on the labor market, a subject we’ve been covering here at OnLabor.  Barbara Ehrenreich, in her review of the book, writes that “[w]hen a veteran labor leader like Andy Stern argues that we’re not going to survive an increasingly jobless economy without a universal basic income, then it’s time for the rest of us to listen up.” I agree.  Interested readers can learn more here.  For those looking to get some background and history of the universal income concept, Phillipe Van Parijs’ Basic Income: A Simple and Powerful Idea for the Twenty-first Century provides an excellent primer.

Whole Foods: FunJobs at $11/hour

Whole Foods is advertising job openings in the Boston suburbs starting at $11/hour – a mere $4/hour less than the Fight for Fifteen demand. Is this what conscious capitalism means?

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Some Sanity on Striker Replacements

Since 1938, when the Supreme Court decided Mackay Radio, there’s been a famous contradiction in U.S. labor law with respect to strikes.  On the one hand, we know that the NLRA protects the “right to strike.”  If that protection is to mean anything, it must mean – and it does mean – that an employee can’t be fired for striking.  On the other hand, Mackay holds that, at least in certain circumstances, employees can be permanently replaced if they go on strike.  The distinction between being fired and being permanently replaced is a fine one.  To the employee involved, it’s often a distinction without a difference because in both cases the result is permanent job loss.

Since Mackay, then, there’s existed a deep tension between the right of employees to strike and the right of employers to hire permanent replacements.  The question since Mackay has thus been what are the circumstances in which an employer can permanently replace strikers.  In its American Baptist Homes decision, released yesterday, the Board restores some common sense to the law of striker replacements and shows renewed faithfulness to the Supreme Court cases in this area of labor law.

In Mackay, the Supreme Court held that an employer may hire permanent replacements during a strike “in an effort to carry on the business.”  In other words, where the employer needs to hire permanent striker replacements in order to maintain business operations, then permanent replacements may be hired.  Two related points ought to follow.   Continue reading

Federal Appeals Court Deals Huge Blow to Mandatory Arbitration

In a case with major implications for mandatory arbitration agreements, the seventh circuit today struck down an arbitration clause that prohibited employees from pursuing class proceedings.  The appeals court, in an opinion by Chief Judge Wood, held that by banning collective actions, such an agreement violates the National Labor Relations Act.  The decision, Lewis v. Epic Systems Corp., conflicts with the Fifth Circuit’s holding in D.R. Horton and thus creates a circuit split.

As the seventh circuit correctly observes, Section 7 of the NLRA protects not only collective bargaining but also “other concerted activities.” These “other concerted activities,” moreover, have for decades been held to include “resort to administrative and judicial forums.”  Thus, courts and the NLRB have long concluded that filing collective or class action legal proceedings constitutes protected “concerted activity” under the NLRA.  By prohibiting workers from pursuing class proceedings, a mandatory arbitration clause with a class action waiver therefore requires workers to waive their section 7 rights, something no employment agreement can do.

As the seventh circuit also correctly concluded, the Federal Arbitration Act does not save such an arbitration agreement.   Continue reading

New OECD Study Finds Lower Job Threat from Robots

An important new paper published for the OECD predicts that robots and automation will impact far fewer jobs than the now-famous 47% number established by Frey & Osborne.  The OECD paper estimates that 9% of jobs in the United States are at risk of automation.  Nine percent is quite significant, but substantially different than the estimate of nearly 1-in-2 that has dominated recent debate.  Here’s the abstract:

In recent years, there has been a revival of concerns that automation and digitalisation might after all result in a jobless future. The debate has been fueled by studies for the US and Europe arguing that a substantial share of jobs is at “risk of computerisation”. These studies follow an occupation-based approach proposed by Frey and Osborne (2013), i.e. they assume that whole occupations rather than single job-tasks are automated by technology. As we argue, this might lead to an overestimation of job automatibility, as occupations labelled as high-risk occupations often still contain a substantial share of tasks that are hard to automate. Our paper serves two purposes. Firstly, we estimate the job automatibility of jobs for 21 OECD countries based on a task-based approach. In contrast to other studies, we take into account the heterogeneity of workers’ tasks within occupations. Overall, we find that, on average across the 21 OECD countries, 9 % of jobs are automatable. The threat from technological advances thus seems much less pronounced compared to the occupation-based approach. We further find heterogeneities across OECD countries. For instance, while the share of automatable jobs is 6 % in Korea, the corresponding share is 12 % in Austria. Differences between countries may reflect general differences in workplace organisation, differences in previous investments into automation technologies as well as differences in the education of workers across countries.

The OECD authors do warn that automation is likely to have a greater impact on lower skilled workers, a prediction with crucial policy and labor market implications.  As they write: Continue reading

Ben Levin on “Ban the Box”

Ben Levin, a frequent contributor to the blog, has a great new piece up at Time arguing that the President’s ban-the-box proposal, while cause for celebration, doesn’t go far enough. According to Ben, the proposal’s main limitations include the facts that, one, “the proposal would affect only federal employers, not private employers or state or local governments,” two, “it would affect only the initial application[, and e]mployers would still be free to inquire into an applicant’s history later in the application process,” (a point Aabid has stressed here),  three, the “proposal wouldn’t affect the background rules of tort law that expose employers to liability if they hire (or fail to fire) individuals with criminal records,” and four, “the proposal doesn’t alter the massive web of licensing laws that prevent those with criminal records from working in a range of fields.”

As usual, insightful commentary from Ben.  The piece is definitely worth a read.