Labor Law

Recent Case: NLRB v. International Ass’n of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229

November 22, 2019

Labor law holds a precarious place within First Amendment jurisprudence.  Since the 1930s, unions have enjoyed both protections and constraints that appear to push the boundaries of constitutionality.  Recently, cases like Janus v. AFSCME have threatened labor law’s uneasy equilibrium of worker power and individual rights.  With union-protective legislation falling under First Amendment challenge, scholars…

Recent Case: Salazar v. McDonald’s Corp.

October 18, 2019

Over 90 percent of McDonald’s restaurants in the United States are franchises.  Franchising has many benefits for both the franchisor (who saves substantial operating expenses) and the franchisee (who can leverage the franchisor’s brand name and startup resources).  But there are serious drawbacks to the franchise model for employees, whose legal recourse against a franchisor…

Trump-Appointed Labor Board’s Impatient Agenda to Reformulate Labor Law

August 7, 2019

Congress framed the National Labor Relations Act in 1935, during a period of confidence in the administrative state, using broad language and excluding a private right of action. The Labor Act thereby delegated significant authority to the National Labor Relations Board to formulate doctrine that would encourage “the practice and procedure” of effective and peaceful…

A Weakening of Overtime Regulation Reform

May 6, 2019

Elections, especially Presidential elections, have consequences. Few need reminding of this truism after 2016. But the distributional consequences of American Presidential elections have long antedated the emergence of Trumpism in the Republican Party. On no issue is this clearer than those involving the regulation and protection of benefits for American employees.  This is illustrated by…

Janus and Public Pension Funds

September 17, 2018

In last Term’s Janus v. AFSCME, the Supreme Court ruled that union agency fees—payments that all public employees were required to make to labor unions—violated the employees’ First Amendment rights. Since Janus, several commentators have pointed out that agency fees are not the only mandatory payments deducted from public employees’ paychecks. In most states, public…

Janus and the Law of Opt-Out Rights

July 2, 2018

A great deal of time will be spent scrutinizing the core holding in Janus v. AFSCME, Council 31, that the First Amendment forbids public employers to require workers to financially support a union’s costs of collective bargaining. Still more time will be spent debating state legislative approaches to soften Janus’s blow or neutralize it altogether….