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.

White House Summit on Worker Voice

I’m heading to D.C. tonight to participate in a panel at tomorrow’s White House Summit on Worker Voice.  The panel (which includes Mark Barenberg from Columbia Law School, Dorian Warren of the Roosevelt Institute, and Rep. Bobby Scott) will focus on how the law might change to better facilitate worker voice.  As I see it, this question calls on us to pay attention to two broad categories of potential reforms.

The first is legal reforms aimed at better enabling union organizing and collective bargaining: the institutions that have had the greatest success in ensuring worker voice across U.S. history.  Here, the newly proposed WAGE Act is a good example.  By strengthening the NLRA’s remedial regime and adding a private right of action, that bill will put workers in a better position to exercise their federal right to choose whether or not they want to be represented by a union. The NLRB has also been taking important steps to better enable employee choice on the union question: expanding the joint employer doctrine, for example, and improving union election rules.

The second category is legal reforms aimed at enabling forms of worker voice other than traditional unionism and collective bargaining.  One possibility, already widely discussed, is expanding the scope of the bargaining obligation to include members-only unions. Such a course holds significant promise, and might be accomplished without legislative change.  A recent paper by Moshe Marvit, which describes some real-world examples of members only unions (albeit in a world where there is no bargaining obligation) ought to be part of the discussion of this option.  Catherine Fisk and I have also discussed a variation of this idea: requiring employers to bargain with members-only unions in right to work states.  Workers centers provide an additional vehicle for voice, and here the challenge may be more in protecting the centers from legal attack than in changing the law to enable their growth. Another possibility for reform is to relax the restrictions contained in 8(a)(2) in order to allow experimentation with works councils – broadly defined.  As is the case with members-only unions, of course, works councils raise a host of questions and pose some risks (similar to the risks that led Congress to ban company unions in 1935).  The Summit should offer a good opportunity to confront these questions and to assess the benefits and risks associated with these kinds of legal reforms.