Today’s News & Commentary — July 11, 2017

As reported by the New York Times, the Trump administration (the Department of Homeland Security) announced that it would delay, and likely forgo altogether, implementing a federal rule which would have allowed foreign entrepreneurs to come to/stay in the United States to start companies.  According to the announcement, the International Entrepreneur Rule was delayed in order to “provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule.”  The announcement was not well-received by many business leaders.  The president of the National Venture Capital Association (NVCA) called the announcement “disappointing,” and described it as “represent[ing] a fundamental misunderstanding of the critical role immigrant entrepreneurs play in growing the next generation of American companies.”

As we mentioned last week, on July 5, 2017, Washington State’s Governor, Jay Inslee, signed SSB 5975 into law.  The law guarantees paid family and medical leave, providing benefits of up to 90% of the employee’s income (matching D.C. in providing the highest percentage of income benefits of any state or district).  Under the law, employees who have worked at least 820 hours in the past year will be eligible for up to 12 weeks of paid family leave to care for a new child or sick family member.  Employees will also be entitled to up to 12 weeks of paid leave to manage their own serious health issues.  Employees will be able to, under certain circumstances, combine family and medical leave to receive up to 16 weeks of paid leave.  Finally, employees who experience pregnancy-related complications will be able to receive up to 18 weeks of paid leave.  Washington’s program, which will take effect in 2020, will be funded by both employers and employees.  Upon enacting this law, Washington became the fifth state to enact a state paid family and medical leave act.  D.C. has also adopted a paid leave program in its jurisdiction.  OnLabor has covered similar state enactments in the past (see here and here).

Today, oral argument takes place in Amanda Frlekin et al v. Apple.  The case is on appeal to the Ninth Circuit.  In this class action, plaintiff-employees argue that they should be paid for the time they spend at the end of their shifts undergoing anti-theft bag searches.  The employees lost below—U.S. District Judge William Alsup (in the U.S. District Court for Northern California, San Francisco) rested his ruling in part on the fact that employees could choose not to bring a bag to work, and thus obviate the delay of a bag search.  In a similar case, Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), SCOTUS held that bag checks were not compensable activity because they were not an “integral and indispensable” part of the employees’ job responsibilities.  However, in Miranda v. Coach, Inc., 2015 WL 1788955 (N.D. Cal. 2015), the court held that Busk did not apply to California labor law.  Thus in Frlekin, the favorable outcome to Apple was based on the judge’s finding that employees were not “suffered or permitted” to work during bag checks.

The New York Times profiled economist Michael Mandel’s (Progressive Policy Institute) view that the rise of e-commerce is creating net jobs.  That is, that as e-commerce surpasses brick-and-mortar retail in the economic landscape, it is creating more jobs than it is displacing.  What’s more, Mandel’s “unorthodox” position asserts that these new jobs are higher-paying than traditional retail jobs.  As the profile points out, other economists are skeptical of Mandel’s position.  At the very least, the tension captures the existing anxieties, which we’ve previously covered, about the future of jobs as automation and other labor-saving technologies become increasingly prevalent.

Today’s News and Commentary—June 27, 2017

On June 23, the Supreme Court decided Perry v. Merit Systems Protection Board.  The court held that when a government employee’s “mixed case” is dismissed by the Merit Systems Protection Board for lack of jurisdiction, that employee must appeal the decision to the federal district court, not the Federal Circuit.  A “mixed case” is one in which the employee claims that an adverse employment action was violative of the Civil Service Reform Act and federal anti-discrimination laws (e.g. Title VII).

Last Wednesday, Wisconsin Governor Scot Walker signed Assembly Bill 25 into law.  The law reduces “burdens” on employers that hire teenage workers.  The revised law redefines “minor of permit age” to exclude 16- and 17-year-old job applicants, thus eliminating their requirement to obtain a work permit.  The bill implicates restaurants, retailers, and other industries reliant on teenage labor. 

The New York Times discussed a study pointing to a lack of diversity in theater jobs.  Notably, the study found that women and minority actors and stage managers get fewer, and lower-paying, jobs than their Caucasian male peers.  The study was done and published by Actors’ Equity, a labor union focused on, among other things, making the entertainment industry better reflect the United States’ diversity.

On Monday, the Supreme Court announced that it would review Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that made headlines when the Colorado Court of Appeals upheld a finding that a baker who refused to make a wedding cake for a same-sex couple, citing his religious convictions, had committed illegal discrimination against the couple.


Daily News & Commentary — June 13, 2017

New York City’s Transport Workers Union (TWU) Local 100 endorsed Mayor Bill De Blasio’s proposed Brooklyn-Queens Connector (BQX)—a sixteen-mile, 24/7 streetcar planned to run along the East River.  The project is controversial in part because of how expensive it would be.  John Samuelson, TWU’s president, said that the project would facilitate “several hundred jobs.”

Yesterday, Teamsters working at Vistar Foodservice’s distribution facility in Ontario, CA began an unfair labor practice strike.  Vistar delivers food to movie theater chains throughout southern California.  The strike was undertaken in order to protest Vistar’s decision to give some workers a raise, but withhold a raise for others.

On Friday, the D.C. Circuit upheld the NLRB’s revision to the formula it uses to calculate backpay awards to workers who have been unlawfully terminated.  The D.C. Circuit panel ruled, unanimously, in the case against King Soopers (a division of the Kroger supermarket company) that King Soopers had to pay a former employee’s “search-for-work” expenses.  The rule laid down by the Board requires the NLRB’s general counsel to demonstrate that the unlawfully terminated employee’s expenses are reasonable.  Philip A. Miscimarra, who Trump appointed Chairman of the NLRB this past spring, was the lone dissenter in the NLRB’s 3-1 ruling.  In Miscimarra’s view, the rule would produce a windfall to claimants whose interim earnings equal or surpass the sum of their lost earnings and search-for-work expenses.

On Wednesday, the EEOC will meet, in honor of the 50th anniversary of the Age Discrimination and Employment Act (ADEA).  The meeting will feature speakers like Laurie McCann of the AARP Foundation Litigation, and Jacqueline James of Boston College’s Center for Research and Education.  The Commission will consider the state of age discrimination and the future challenges it poses.  Also on Wednesday, a subcommittee of the U.S. House of Representatives Committee on Education and the Workforce will hold a hearing on three Republican bills:  The Employee Rights Act (which we have previously discussed); The Workforce and Democracy Fairness Act; and The Employee Privacy Protection Act.

Today’s News & Commentary — May 30, 2017

Uber and Lyft returned to Austin, TX on Monday after Texas Governor Greg Abbott signed HB 100 into law, eliminating Austin’s fingerprint requirements for drivers.  As the LA Times describes, the bill designates the state, not local, government as the regulator of the “ride-hailing industry.”  Uber and Lyft left Austin in May of 2016 after losing Proposition 1—Austin voters decided (56% to 44%) not to allow Uber and Lyft to continue using their existing background check systems.  Governor Abbott called HB 100’s passage a “celebration of freedom and free enterprise.”  Austin Mayor Steve Adler, in contrast, was “disappointed” and expressed his “hope that [Uber and Lyft] return ready to compete in a way that reflects Austin’s values.”

Last Thursday, the Court of Appeals for the Second Circuit agreed to hear en banc Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), a case which held that Title VII’s ban on sex discrimination does not protect against sexual orientation discrimination.  As we have covered in a previous post, this issue has been addressed, and decided to the contrary, by the Seventh Circuit.  Notably, the Seventh Circuit’s ruling produced a split with the Eleventh Circuit (Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017)).  Zarda’s case was originally dismissed on summary motion pursuant to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), another Second Circuit case holding that Title VII does not proscribe sexual orientation discrimination.  On appeal, the Second Circuit panel refused Zarda’s argument that it overrule Simonton, citing Christiansen v. Omnicon Group, 852 F.3d 195 (2d Cir. 2017) (court permitted an openly gay employee to pursue a Title VII claim, but on a sex-stereotyping, not sexual orientation discrimination, theory) for the proposition that only the en banc panel of the Court or SCOTUS could reverse circuit precedent.  Oral argument in the case will take place this September.

On Friday, a New Jersey judge denied the Jersey City teachers union’s motion to dismiss a lawsuit, brought by two NJ residents working with the Goldwater Institute (a conservative think tank), challenging the district’s “release time” policy as violative of the New Jersey Constitution.  The policy allows two top union officials to work exclusively on union activities while being paid by the district.  The suit alleges that “release time” is prohibited by the state Constitution’s ban on local governments giving gifts to individuals or entities.

Last Thursday, Rep. Phil Roe (R-Tenn.) reintroduced the Employee Rights Act (ERA).  The bill, if passed, would amend the NLRA to, among other things, require secret ballot elections in employee unionization decisions; require unionized workers to hold periodic secret ballot elections to verify a continued desire to be represented by the union; empower the NLRB to de-certify unions for intimidating members; criminalize union threats; and require unions to receive affirmative permission from members to use payments toward political spending.  Rep. Roe described the ERA as neither “pro- or anti-union,” but rather, “a commonsense measure to ensure a transparent and fair workplace.”