Labor & Employment

Topics

The relationship between employer and employee is one of the most familiar associations to everyday Americans. How have these relationships changed over the decades? Have regulations kept pace with the radical transformation technology has brought to this space? In what areas can we improve the regulation of employment relationships?

Give Me A Break: DOL Regulations Need Updating to Afford Workers Desired Flexibility

February 11, 2019

In this paper, Gregory Jacob, Michael Lotito, and Tammy McCutchen argue that Department of Labor regulations have failed to keep pace with rapid technological change and that updating these rules could benefit both workers and employers.

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A Spoonful of Clarity Will Help Wellness Plans Thrive

September 8, 2017

In this paper, Diana Furchtgott-Roth and Gregory Jacob discuss the EEOC’s 2016 regulations defining the extent to which the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) permit employer-sponsored wellness plans. While the EEOC’s final regulations purport to “harmonize” wellness plan requirements, the papers authors argue that the EEOC has in fact added several additional regulatory burdens on employers that administer wellness plans.

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College Campus Job Recruiting and Age Discrimination

September 6, 2017

In this paper, Diana Furchtgott-Roth and Gregory Jacob explore the EEOC’s contention that campus recruiting programs and other hiring programs that focus on recent graduates are presumptively illegal because they constitute age discrimination. They dive into the EEOC’s legal justification for the position and explore recent litigation for and against the rule.

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Pay Data Collection

September 4, 2017

In this paper, Diana Furchtgott-Roth and Gregory Jacob discuss the EEOC’s 2016 rule requiring employers to disclose their employees’ compensation data to the federal government in order to minimize the “pay gap”, and argue that this data collection is destined to prove fruitless, will lead the EEOC away from stamping out actual wage discrimination, and saddle the economy with costly paperwork and red tape.

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Deep Dive Episode 199 – Pass or Fail? Grading the NLRB, EEOC, and DoL

September 28, 2021

An expert panel debates the recent performance of three labor-focused regulatory bodies.

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Deep Dive Episode 187 – Courthouse Steps Decision: Cedar Point Nursery v. Hassid

July 8, 2021

Attorney Wen Fa analyzes the Supreme Court’s decision in Cedar Point Nursery v. Hassid.

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Explainer Episode 28 – Rep. Harshbarger on the Freedom to Work Act

July 6, 2021

Rep. Diana Harshbarger joins Shoshana Weissmann to discuss the “Freedom to Work Act” and the most prevalent arguments for and against its passage.

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Deep Dive Episode 169 – Courthouse Steps Oral Argument: Cedar Point Nursery v. Hassid

March 30, 2021

Wen Fa joins us to break down oral arguments in Cedar Point Nursery v. Hassid.

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Deep Dive Episode 124 – Labor Law Compliance Issues Posed by COVID-19

August 10, 2020

This live podcast examines federal and state labor and employment issues caused by COVID-19 and reviews options for employers to consider.

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Deep Dive Episode 85 – State Regulators and the Gig Economy

January 24, 2020

Gig-economy companies like Uber, Lyft, DoorDash, and others have disrupted sectors across the economy. Alex MacDonald discusses the implications of state regulations for the future of gig work and, perhaps, a better way forward.

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Deep Dive Episode 74 – A Discussion on Current Department of Labor Priorities

October 17, 2019

This episode, moderated by former Solicitor of Labor Gregory Jacob, features a discussion with Cheryl Stanton, head of DOL’s Wage and Hour Division, and Jonathan Berry, head of its regulatory policy shop, about how President Trump’s Department of Labor is stewarding the responsibilities that have been entrusted to its care.

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Deep Dive Episode 70 – Independent Contractor Or Employee?

October 4, 2019

In this episode, Bruce J. Sarchet gives an overview of the ABC Test; an analysis of the provisions of California’s AB 5; a discussion of the potential impacts on the California and U.S. economy should the bill be passed into law; and options for compliance.

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Deep Dive Episode 48 – The Wage & Hour Trifecta: DOL Proposals on Overtime Exemptions, the Overtime Calculations, and Joint Employment

April 30, 2019

Tammy McCutchen discusses the Department of Labor’s recently published proposals to revise the FLSA regulations on joint employment, overtime exemptions, and the regular rate/overtime calculation.

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Pass or Fail?: Grading the NLRB, EEOC, and DoL

September 28, 2021

An expert panel debates the recent performance of three labor-focused regulatory bodies.

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The Debate over Worker Classification in California: CA AB-5 and Beyond

December 1, 2020

Californians approved an exemption to AB-5 permitting app-based ridesharing and delivery drivers to function as independent contractors. What about other independent contractors?

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2018 JLEP Symposium: Regulating the Modern Workforce

March 7, 2018

Government regulation is intended to improve the efficiency of markets and protect people from harms they cannot identify or prevent on their own. But, for decades, advocates have debated whether the regulatory process and rules developed through it are too strict or too lax; whether they properly account for all the things society values; and even whether they make society better or worse off on balance. The Journal of Law, Economics & Policy’s Symposium on Regulatory Reform, Transparency, and the Economy explored these and related questions as leading scholars and practitioners examined a number of recent regulatory proposals impacting a broad swath of the American economy – from banking and finance to energy and the environment, and from employment law to the internet economy. Speakers considered and debated how well these proposals would perform their intended functions and how they might be improved.

The symposium featured discussions of research papers prepared by experts working on the Federalist Society’s Regulatory Transparency Project. The proceedings of the Conference were published in a special symposium issue of George Mason’s Journal of Law, Economics & Policy.

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COVID Vaccination Mandate?

Tammy McCutchen

January 19, 2021

Labor law expert Tammy McCutchen lays out the considerations private firms must account for when deciding whether to institute a mandatory vaccination policy.

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To Combat Long-Term Unemployment, Policymakers Should Embrace the Gig Economy

Alexander MacDonald

July 14, 2020

To prevent a massive, long-term depression, policymakers must help get people back to work. But ironically, one of their best tools for doing so may be the one they’ve spent the last six months attacking: the so-called gig economy.

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Half-Baked Benefits: New Jersey Repeats the Mistakes of the Past in Its New Portable-Benefit Law for Gig Workers

Alexander MacDonald

March 2, 2020

Rather than forcing twenty-first century markets into twentieth-century models, legislators should be thinking outside the box.

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The Gig is Up?

Bruce J. Sarchet

February 3, 2020

…the gig economy is here to stay, and government efforts to regulate this growing sector of our society, our workplaces, and our daily lives will continue to expand.

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The NLRB and Weaponization of Recusal Motions

Tammy McCutchen

January 6, 2020

National Labor Relations Board member William Emmanuel has been under attack almost immediately after and continuously since he landed at the NLRB.

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California Assembly Bill 5 Legislation – An Expansive and Potentially Onerous Definition of Employee Status Under California State Law

G. Roger King

September 12, 2019

AB 5 would appear to be a significant overreach, and also a clear misinterpretation of traditional common law principles defining independent contractor status.

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Give Me a Break: The Need for DOL to Review Outdated and Stifling Workplace Rules

James Paretti

August 13, 2019

As the U.S. Department of Labor (DOL) prepares for new leadership in the coming months, now more than ever the time is right for it to consider a stem-to-stern review of its regulations under the Fair Labor Standards Act – a law passed in 1938, and implemented by regulations which often bear little relation to the realities of today’s 21st century workforce.

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DOL Issues Proposed Rule on Joint Employment

Tammy McCutchen

April 19, 2019

After over two years of regulatory inactivity, the DOL’s Wage and Hour Division appears to be rushing to complete its regulatory agenda before the 2020 presidential election season.

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Department of Labor Proposes to Increase Minimum Salary for “White Collar” Overtime Exemptions

Tammy McCutchen

April 18, 2019

On March 7, 2019, the Wage and Hour Division of the U.S. Department of Labor, through its Acting Administrator Keith Sonderling, published the long-awaited Notice of Proposed Rulemaking (NPRM) to revise the “white collar” overtime exemption regulations.

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DOL Releases a Proposed Rule to Clarify the Types of Compensation in the Overtime Calculation

Tammy McCutchen

April 18, 2019

On March 28, 2019, the U.S. Department of Labor (DOL) released a proposed rule to amend the regulations at 29 CFR Part 778 to clarify and update the “regular rate” requirements under section 7(e) of the Fair Labor Standards Act (FLSA), 29 USC §207(e), focusing on the types of compensation and benefits that employers must include in the overtime calculation.

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OSHA Drones in the Workplace?

Tammy McCutchen

December 6, 2018

Yes, your friendly neighborhood OSHA inspector is now authorized by the Labor Department “to use camera-carrying drones as part of their inspections of outdoor workplaces.”

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The Truth about DOL’s Tip Pooling Proposal

Tammy McCutchen

February 5, 2018

“Employee advocates” are objecting to the DOL’s tip pooling proposal, but one wonders why they are advocating for front-of-the-house employees at the expense of back-of-the house workers.

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