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.

Weekend News & Commentary — July 1-2, 2017

This week, the Department of Labor expressed its intention to change its impending overtime rule.  The Labor Department filed a response brief in a Fifth Circuit case involving a challenge to the Obama administration’s overtime rule.  The rule, which was intended to go into effect last December, increased the salary threshold under which workers would receive time-and-a-half pay for work exceeding 40 hours per week to $47,467.  A month before the rule was supposed to take effect, a federal judge in Texas issued an injunction, enjoining the rule in State of Nevada v. United States Dep’t of Labor.  The Obama administration appealed, and the Trump administration elected to continue the challenge.  However, the government’s reply brief makes it clear that the Labor Department intends to revise the pending rule.  Instead of defending the salary threshold established by the rule, the Department of Labor is asking the Fifth Circuit to affirm the Department of Labor’s authority to set threshold salaries for overtime pay, which the lower court opinion called into question.

Last week, the Second Circuit enforced a National Labor Relations Board order finding that an employee’s Facebook post was protected by the National Labor Relations Act in NLRB v. Pier Sixty, LLC.  The employee was fired after his employers discovered the post, which included profanity-laced comments about the employee’s supervisor.  The employee subsequently filed a ULP complaint with the NLRB.  An Administrative Law Judge found that the employee’s comments were protected concerted activity under Section 7 of the NLRA.  The Second Circuit concluded that although the comments were at the outer bounds of protected activity, they were nonetheless protected because they encouraged employees to vote for the union in an upcoming election.  In reaching its decision, the Court considered the fact that the post was made two days before a union election and brought up workplace concerns.  The Court also considered the fact that Pier Sixty had not fired or disciplined other employees for similar behavior in the past.  Lastly, the Court considered the method the employee used to communicate, noting that social media is a popular forum for communicating and organizing among workers.

The Second Circuit also denied a plaintiff’s request to review Christiansen v. Omnicom Group, Inc. en banc.  In Christensen, the plaintiff argued that Title VII prohibits discrimination on the basis of sexual orientation.  Relying on circuit precedent establishing that sexual orientation-based discrimination is not sex discrimination under Title VII, a three-judge panel dismissed the plaintiff’s sexual orientation discrimination claim.  The Second Circuit’s denial does not mean it is unwilling to revisit the possibility that discrimination on the basis of sexual orientation is sex-based discrimination under Title VII.  In May, the Second Circuit granted en banc review of Zarda v. Altitude Express.  In Zarda, the plaintiff also brought suit under Title VII, alleging discrimination on the basis of sexual orientation.  The Court upheld the lower court’s finding that Title VII does not protect against sexual orientation-based discrimination.  If the Court overturns Zarda, the Second Circuit would join the Seventh Circuit in finding that discrimination based on sexual orientation violates Title VII.

On Friday, the New York Times chronicled female entrepreneurs’ experiences with sexual harassment in Silicon Valley.  More than two dozen women shared their stories about being sexually harassed by investors and venture capitalists.  Female entrepreneurs shared stories that ranged from being propositioned and touched without consent while seeking jobs, to sexist comments made in the course of trying to secure funding.  These stories speak to a pervasive culture of sexism that may help explain the gender imbalance in the tech industry.  As the article notes, more women have begun to speak out, which may signal the beginnings of a cultural shift within the industry.


Daily News & Com­men­tary — June 21, 2017

Yesterday, Travis Kalanick resigned from his post as chief executive at Uber following a series of scandals concerning the company’s workplace culture and legal problems.  Earlier on Tuesday, a group of investors insisted Kalanick step down in a joint letter.  Kalanick will continue to serve on Uber’s board.  Read more here.

The White House announced that President Trump will nominate Marvin Kaplan to the National Labor Relations Board.  Kaplan currently serves as independent counsel at the Occupational Safety and Health Review Commission.  Previously, he served as counsel on the Republican staff of the House Committee on Education and the Workforce.  With two vacancies at the Board and Democrats controlling two of the three filled seats, this announcement puts President Trump on the path to creating a Republican majority at the NLRB.  A Republican controlled Board could rollback many Obama era decisions.  President Trump will also nominate Patrick Pizzella to fill the role of Deputy Secretary at the Department of Labor.  

In international news, the New York Times reported that Laurent Berger, the leader of the French Democratic Confederation of Labor, might be willing to work with the French government to update the country’s labor code.  Berger suggests that President Emmanuel Macron’s victory may provide an opportunity for reform.  Macron has championed “flexible security,” an economic model originating in Denmark.  The system aims to foster agreement between management and labor and reduce unemployment.  While some of Macron’s proposed reforms are likely to face stiff opposition from unions, Berger’s belief that “‘in a globalized world, the economy must be able to adjust” provides hope for the reform effort.  Read more here.     Continue reading

Daily News & Commentary — June 19, 2017

As covered earlier today, the Department of Justice announced last Friday that it will switch over its support in the upcoming Supreme Court case, NLRB v. Murphy Oil, from the National Labor Relations Board to Murphy Oil.  The issue in the case, set for the 2017 October term, is whether arbitration agreements with individual employees that ban employees from pursuing employment claims on a class or collective basis (class action waivers) violate the NLRA.  Under President Obama, the DOJ wrote an amicus brief in support of the NLRB, which had ruled that such arbitration agreements did indeed violate the NLRA.  But, as the DOJ states in its re-filed brief, “after the change in administration, the office reconsidered the issue and has reached the opposite conclusion.”  The DOJ now argues that “nothing in the NLRA’s legislative history indicates that Congress intended to bar enforcement of arbitration agreements like those at issue here.”  NLRB v. Murphy Oil was consolidated with Epic Systems Corp. v. Lewis (the 7th Circuit opinion that caused the circuit split), and Ernst & Young LLP v. Morris—all three cases received significant attention when their opinions were issued.  Whatever the outcome, the case will be a landmark case for employment law.

Up to 2000 of British Airways’s cabin crew employees are preparing to strike from July 1 to 16.  The walkout comes after the workers, organized as members of the Unite union, rejected an offer that allegedly withheld bonuses and perks for 1400 cabin crew employees who had gone on a four-day strike earlier in 2017.  Unite has said it will pursue legal action against British Airways on behalf of the workers allegedly facing retaliation.

Over 5000 employees of Clark County, NV, which includes Las Vegas, came to finalize three-year labor agreements after several months of bargaining.  The workers are represented by Service Employees International Union Local 1107.  The two contracts cover supervisory and non-supervisory workers, and include a 2% raise.  County commissioners are expected to vote on approving the new contracts tomorrow.

Russian organizers of the 2018 FIFA World Cup disputed a Human Rights Watch report published last Wednesday, which found that at least 17 construction workers had died as a result of brutal work conditions.  The chief executive of the World Cup’s local organizing committee responded that the construction sites were under routine inspection, and that the organizing committee had not found conditions akin to those reported by Human Rights Watch.

On Friday, USA Today published an investigative report into the troubling work conditions faced by American truckers.  Journalist Brett Murphy covered how some truckers, many of whom are immigrants with minimal English-speaking ability and are thus vulnerable to abuse, work essentially as indentured servants as a result of being misled to take on debt to finance their own trucks.

Weekend News & Commentary — June 17-18, 2017

Recent statistics from U.S. Citizenship and Immigration Services show that thousands of undocumented immigrants have been issued work permits by the Trump Administration pursuant to the Deferred Action for Childhood Arrivals Program.  DACA provides undocumented immigrants with a work permit that is subject to renewal after two years.  The statistics show that over 17,000 new DACA applicants were approved, and 107,000 immigrants already enrolled had their two-year work permits renewed in the first three months of 2017.  Thus far, President Trump has been unclear as to whether or not he intends to keep DACA.

Last week, the 4th Circuit affirmed a judgment against an employer for failing to accommodate an employee’s religious belief in EEOC v. Consol Energy, Inc.  The employer, Consol Energy, installed a biometric hand-scanner system to monitor its employees in 2012.  An employee claimed that using the scanner would be contrary to his evangelical Christian beliefs because it would mark him with the “Mark of the Beast,” which he believed was associated with followers of the Antichrist.  After Consol declined the employee’s request for a religious accommodation, the EEOC brought suit.  The EEOC argued that Consol failed to provide an accommodation and constructively discharged the employee, violating Title VII.  The jury found in favor of the EEOC, determining that the employee had a sincerely held religious belief that he informed the employer of, and that the employee was constructively discharged.  The 4th Circuit affirmed the district court’s judgment, emphasizing that a jury could reasonably conclude the employee sincerely believed using the scanner would mark him, even in the absence of a physical mark.  The court also found that Consol could have feasibly made an accommodation that would not have imposed undue hardships.

On Friday, Amazon announced that it is purchasing Whole Foods for $13.4 billion.  The acquisition is the company’s latest attempt to establish a larger presence in the food and beverage market.  The sale will likely have significant impacts on Whole Foods employees, and cashiers more generally.  Although Amazon has not publicly stated how Whole Foods’ day-to-day operations will change, increased automation is likely.  Amazon has already begun experimenting with grocery stores that have no cashiers.  The company has opened an Amazon Go store in Seattle that has no checkout lines and no salespeople.   While Amazon Go is only in its testing phase, a shift towards automation in retail services may be imminent.  The Bureau of Labor Statistics projects that the rate of growth for cashier jobs will decline as a direct result of technological developments.  Studies show that a large portion of the work done by grocery store workers could be automated, and likely will be in the near future.  Amazon’s purchase may very well be a significant step towards this anticipated increase in automation.


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 — June 8, 2017

Testifying before a House of Representatives subcommittee, Secretary of Labor Alexander Acosta highlighted apprenticeships and job training.  These topics also seem to be current priorities for President Trump.  Secretary Acosta’s testimony predictably signaled efforts to change the overtime rule and the fiduciary rule (which we described here and here), both from the Obama era.

In Massachusetts, worker Jose Flores broke his femur in an on-the-job accident and filed for worker’s compensation against his employer.  When he went to a meeting arranged by the employer, Flores encountered ICE agents, who detained him and started deportation proceedings.  Commentary on Flores’ case highlights how fear of immigration consequences chills reporting (which we discussed here) and illuminates the need for such reporting: wage theft is rampant, 40% of workplace injuries and illnesses are not paid for by worker’s compensation, and workplace deaths are on the rise.

July 1, 2017 will see a paid sick leave requirement take effect in both Chicago and Cook County.  The city passed its ordinance in June 2016 and proposed regulations in May 2017.  Comment on those regulations remains open until June 16.  Cook County passed its ordinance in October 2016, with regulations approved last month.  Municipalities may opt out of the county’s requirement before July 1, 2017, and many already have.

In the New York Times’ opinion pages, Jared Bernstein argues that “a robust, highly progressive agenda has been coming together” among Congressional Democrats.  This agenda includes a stipend for families with children, direct job creation, expansion of the earned-income tax credit, and a higher national minimum wage.  Hoyt N. Wheeler responds that such an agenda must include efforts to revive the American labor movement.