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 — May 8, 2017

France voted yesterday to elect Emmanuel Macron as its next President, defeating far-right nationalist candidate Marine Le Pen in a run-off election.  As the New York Times notes, this is good news for the European Union, as Ms. Le Pen’s victory would have threatened France’s future as a member of the E.U.  The E.U., however is, still deeply unpopular in many countries as populist candidates continue to become increasingly popular throughout the bloc.  Although Macron has embraced the E.U., he has stated that “we have to listen to our people and listen to the fact that they are extremely angry today, impatient, and the dysfunction of the E.U. is no more sustainable.”

Last week, the House of Representatives passed the Working Families Flexibility Act, a measure which allows employees to offer workers extra comp time rather than extra pay when they log overtime.  While Republicans have championed the bill as a move to protect work-life balance, some fear that the trade-off will reduce the FLSA’s disincentives for employers to overwork their employees.  Additionally, the bill would shift the control over use of overtime to management, as the bill gives employers leeway to turn down requests to use comp time if it “unduly disrupts the operations of the employer.”  According to the the Huffington Post, the White House has indicated that President Trump would sign the bill if it gets to his desk.

A 2015 ordinance raising St. Louis’s minimum wage to $10 per hour went into effect on Friday after a  judge lifted an injunction blocking the ordinance. The proposed increase came at a time when cities throughout the country were raising minimum wage levels, and became the subject of a two-year struggle between the City and organizations like the Missouri Retailers Association, who argued that the wage should be uniform across the State.  The ordinance significantly increases the minimum wage in St. Louis, currently at $7.70, and is expected to result in immediate raises for 35,000 workers.

Infosys, an Indian company that supplies American companies with foreign technology workers, has announced it will hire 10,000 American workers in the United States over the next two years.  But, as this op-ed in the New York Times argues this weekend, the “Hire American” plan may not be the cause for celebration it seems, as such moves by individual companies side-step actual, systematic reforms while creating the appearance of change. What is really needed, the piece argues, is a fair H1-B system, which would require companies seeking foreign workers to prove they tried and were unable to find American workers with the skills needed, require higher wages for H1-B workers so they could not be used as a cheap substitute for American labor, and a more rigorous enforcement system.

 

Today’s News & Commentary — March 1, 2017

President Trump delivered his first address to Congress last night, in which he called again for increased spending on infrastructure projects and efforts to increase the number of manufacturing jobs in the United States.  No details of these plans were provided, though unions and businesses have begun lobbying to secure portions of the predicted infrastructure package.  A meeting with television news anchors before the speech partially overshadowed the event, though, with Trump apparently indicating some willingness to discuss an immigration compromise that would allow many undocumented workers to remain in the country.

The Los Angeles Times reports on the growing number of restaurants introducing automated ordering or production to reduce labor costs, including Wendy’s, which just announced that more than 1,000 restaurants will receive self-service kiosks by the end of 2017.  The chain’s chief operations officer called the installations an initial step in replacing “repetitive production tasks” with automated systems.

In other news from Washington, as part of an effort to promote job growth through the reduction of regulations, the Trump administration ordered the EPA to begin rolling back an Obama-era regulation that had subjected a number of previously exempt waterways and wetlands to additional pollution standards.  Businesses, especially farmers and developers, had objected to the increased burdens the rule placed on economic activity in regulated areas, though sport fishing and hunting groups supporting the rule argue that significant economic benefits have accrued in newly clean waterways.

The teachers union in the nation’s second-largest school system reelected its president, Alex Caputo-Pearl, by a large margin yesterday.  United Teachers Los Angeles called the result a clear mandate for Caputo-Pearl’s plans to fight back against school reforms supported by the Trump administration that could harm students and weaken unions through an increased reliance on private and charter schools.

Gorsuch’s Judicial Approach and Workplace Protection

When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

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Weekend News & Commentary — January 28-29, 2017

President Donald Trump’s executive order banning entry from seven majority-Muslim nations has dominated the news over the past 48 hours.  Though a federal judge in the Eastern District of New York stayed large portions of the order Saturday night, news outlets continue to report on the ongoing implications of the ban, especially for the numerous workers from the targeted countries who had regularly traveled to and from the United States.  Politico and the Washington Post examine the effect the restrictions may have on employers—especially tech companies and those using H-1B visas—while the New York Times delves into the consequences the order could have for professional athletes.

In other news, the Center for Economic and Policy Research has issued a troubling new report analyzing the most recent Bureau of Labor Statistics data on union membership, which indicates that both public and private sector unionization rates dropped in 2016.  Despite union members continuing to earn a significant premium over nonunion workers, private sector union membership now consists of only 6.4% of workers.  This represents the lowest rate of union membership since statistics began being recorded by the government, with declines being particularly steep in recent right to work state states such as Wisconsin, which has lost 40% of its union members since a 2011 law barring most public sector collective bargaining.

Finally, the New York Times looks at the ongoing failure of the federal government to provide health care for soldiers exposed to dangerous levels of radioactivity while cleaning up after atom bomb tests on islands in the Pacific Ocean during the late 1970s.  Inadequate safety equipment and poor monitoring of radiation exposure may have contributed to elevated cancer rates among workers involved in efforts to restore the islands to suitability for human habitation.

Guest Post: How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class

Charlie J. Morris is Professor Emeritus at the Dedman School of Law, Southern Methodist University.

This is a piece whose unlikely outcome is based on wishful thinking.  It’s what I want to believe, not what I really believe.  But whether I’m right or wrong, the information that follows should prove useful for general understanding of the National Labor Relations Act (NLRA or Act) and its policy, and perhaps someday for improving the functioning of the National Labor Relations Board (NLRB or Board).

As a result of the Presidential election, there is one evidentiary fact on which there’s wide agreement, which is that an unacceptable level of economic inequality exists in America.  Inasmuch as Donald Trump made a major campaign promise to “rebuild our economy for working people,” he now faces the prospect of having to seriously address that condition.  Although this is one of the few areas in which Democrats may find common ground with his administration, there will obviously be substantial disagreements as to what steps should be taken to move toward the common objective of bettering the lot of the American middle class.  And further complicating  those limited areas of agreement  are the areas where the Trump campaign is, or will be, at odds with conventional views of the Republican establishment—especially the Republican Congress.  The extent to which the Trump administration will be willing to pursue objectives that differ from traditional Republican positions is mostly unknown.  For example, If one assumes the possibility of President Trump prevailing in intra-party disagreements concerning matters involving labor-relations—which is pure wishful thinking—a fundamental question arises as to whether he might actually oppose some of the extreme anti-union positions that have long been hallmarks of the Republican establishment and perhaps even initiate some reasonable actions that favor both organized labor and the economy as a whole.

At first blush such occurrences seem unlikely—if not impossible—but Trump’s public statements and his extensive labor-relations record have created an area of mystery that makes this unlikely possibility worth examining.  As we all know, Trump changes his positions readily and is full of surprises.  A potential subject for one such unlikely surprise has crossed my mind. But before examining that subject, we should first look at its likely setting and at Trump’s known record as an active participant in union-management relations, all of which can be contrasted and compared with his public statements.

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Guest Post: Against Despair

Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.

This post is part of a series on Labor in the Trump Years.

As others have written, including on this blog, the Trump presidency could be devastating for unions—and for workers generally.  The administration is likely to oppose any increase to the minimum wage; facilitate roll backs of overtime protections; support the expansion of right-to-work, including as a matter of constitutional doctrine; and appoint leaders to the various labor agencies who lack a commitment to enforcing civil rights, worker safety, and wage and hour laws.  Also expected are appointees who seek to eviscerate collective bargaining and organizing rights under the NLRA.

Notwithstanding these and other serious threats, despair is the wrong reaction for several reasons.

First, the election underscored the importance of unions.  To the extent commentators, including some Democrats, had depicted unions as unnecessary relics, the error of that position should now be clear. Worker organizations are key institutions for equalizing power in the economy and in the democracy.  Their decline helps explain the current state of the American economy and politics.  As Jake Rosenfeld wrote here, “[u]nions remain the only set of mass-based organizations that connect working-class Americans to politics.”  Unions are also some of the few institutions in America through which working people can come together across boundaries of gender, race, and ethnicity, to advance their shared interests.  Finally, unions are self-funded membership organizations.  Historically, such civil society organizations have served as critical bulwarks against authoritarianism.

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