Today’s News & Commentary — May 4, 2017

The New York Times reports that Apple plans to create a $1 billion fund for the advancement of manufacturing jobs in the United States. In an interview with CNBC, Apple’s chief executive Timothy D. Cook noted, “Those manufacturing jobs create more jobs around them because you have a service industry that builds up around them.” The company hopes to announce its first investment from the new fund sometime this month.

The House Rules Committee will meet this week to discuss an amendment to the FLSA. The Working Families Flexibility Act is a Republican-sponsored bill that would create the option for employers to offer one-and-a-half hours of paid time off in lieu of one hour’s worth of time-and-a-half overtime wages. The bill recommends capping the paid time off hours available at 160. A blog post notes that the House Education and Workforce Committee approved the bill last week.

The Circuit Court for the District of Columbia reversed an NLRB decision last week in the case of Bellagio LLC v. National Labor Relations Board, finding that the Bellagio Hotel and Casino did not interfere with a bellhop’s “Weingarten rights” under the NLRA. Weingarten rights assert that employees have the right under the NLRA to have union representation during any investigatory interviews. This right must be affirmatively requested by the employee, after which an employer may (1) grant the request, (2) end the interview, or (3) offer the employee the option between holding an interview without representation or not having an interview.

Following a complaint from a hotel guest about the bellhop, Bellagio management attempted to interview the bellhop, Gabor Garner, who requested union representation. Bellagio suggest Garner contact a union representative on his own, but he refused. The hotel then attempted to find a representative, but was unsuccessful. Upon returning to the interview room where Garner was waiting, management asked Garner if he would like to make a written statement instead, which he also refused. Management then ceased the interview and placed Garner on paid suspension pending investigation until Garner returned the following day with his union representative to conduct the interview. Continue reading

Weekend News & Commentary—April 15-16, 2017

Yesterday, in dozens of cities across the U.S., tens of thousands of protestors took to the streets to demand that Trump release his tax returns.  Reuters explains that organizers of the “Tax March” wanted to draw attention to Trump’s refusal to release his tax returns.  The marches were planned for April 15 because it is the traditional filing deadline for U.S. federal tax returns (this year the filing date was pushed back two days).

Politico reports that the “clock is ticking” for expanding the number of available H-2B visas.  The H-2B visa program permits business to hire temporary, non-agricultural foreign workers, with a cap of 66,000 visas per year.  The 2015 spending bill exempted returning workers from the cap, and business leaders are pushing for Congress to do the same in 2017.  Although a House appropriations bill for the fiscal year 2017 already includes the exemption, business leaders are lobbying the Senate to do the same by April 28, the date by which Congress needs to pass a spending bill to keep the government functioning.

On Thursday, U.S. District Judge for the District of Massachusetts Leo T. Sorokin presided over a two-hour hearing regarding two City Hall aides charged with extortion for “allegedly threatening to withhold permits for the Boston Calling festival in September 2014 unless organizers hired union workers.”  According to the Boston Globe, a prosecutor in the U.S. Attorney’s Office asserted that the aides thought they were advancing Mayor Walsh’s agenda.  Attorneys for the defense countered that the aides acted as city workers seeking jobs for constituents, that they had the right to negotiate the use of City Hall Plaza, and that the prosecutors “have failed to show that the defendants received anything of value for allegedly urging the labor union jobs.”  As Attorney Thomas Kiley argued, “A violation of the National Labor Relations Act is not the same as [extortion].”

Those Job Crushing Regulations

Donald Trump and the Republicans in Congress love to refer to regulations as “job crushing.”  When Trump spoke recently at the Conservative Political Action Conference he not only said that companies can’t hire because of regulations, but he also said that “we’re going to put the regulation industry out of work and out of business.”  Trump has already taken steps to make it much harder for government agencies to do their jobs.  When he came into office, he imposed a hiring freeze, and he issued an executive order decreeing that the cost of all new regulations issued by each department or agency for fiscal year 2017 can’t be greater than zero regardless of the benefits to be gained from the regulations.  Now, Trump has proposed a budget that would dramatically slash the budgets of most federal agencies.  Government “regulators” do a great deal of important work to help sand some of the harshest edges off of our capitalist economy.  I’ll leave it to others to talk about the importance of environmental and food safety regulations, but workers desperately need a vigilant Occupational Safety and Health Administration (OSHA) to protect them from injuries and chemical exposure on the job.  To take just one example, in the last days of the Obama Administration, OSHA issued citations to a manufacturing company after two workers suffered severe hand injuries within ten days due to the company’s failure to install proper safety guards on its machines. While the consequences of inadequate wage and hour regulation are less dramatic, a recent Tenth Circuit case illustrates why there is such a pressing need for the government to monitor workplaces.

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The Current State of Overtime

The New Rule

In May 2016, the Department of Labor, under the direction of President Obama, issued a final rule updating the overtime provisions of the Fair Labor Standards Act.  The Department raised the minimum annual salary for employees exempt from overtime pay from $23,660 to $47,476.  The Department set December 1, 2016 as the effective date for the new rule, implementation of which would have affected over 4 million employees.

Underlying the new overtime rule is the desire to protect workers from being over-worked and under-paid.  As the United Food and Commercial Workers union stated in 2015, the previous threshold of $23,660 is below the poverty line, and reflects only one salary threshold increase since 1975.  As long as employers could classify their workers as “managers,” they could avoid paying them overtime.  The new rule would have required employers to either raise the salaries of low-level managers to meet the $47,476 threshold, or reclassify them as hourly employees entitled to overtime pay.  It was intended to encourage employers to spread employment, and hire multiple workers to perform a job rather than forcing a single worker to work 70 hours a week.  Critics argue the rule would hurt small businesses and reduce jobs.

As many employers were making changes to come into compliance with the new rule by the approaching December 1 deadline, a federal judge in Texas ordered a preliminary injunction barring nationwide enforcement of the rule.  A number of private business groups and 21 states had challenged the rule as an overreach of executive power.  The district judge agreed, claiming Congress, not the Department of Labor, should be responsible for making changes to the minimum salary requirement.

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Today’s News & Commentary — January 31, 2017

2017 could be a tough year for labor unions at the state level.  According to NPR, Kentucky has become the nations’s 27th “right-to-work” state, and Missouri and New Hampshire could join it in February.  New Hampshire would become the first “right-to-work” state in the Northeast.  Advocates in New Hampshire claim that “right-to-work” will entice businesses to relocate to the state, while opponents assert that “right-to-work” creates free rider problems and constitutes political reprisal against unions for supporting Democrats.

At the federal level, things might not be much better.  The Washington Examiner reports that two Republicans will introduce national “right-to-work” legislation tomorrow.  President Trump’s purported support has “right-to-work” advocates optimistic, despite previous failures in Congress.

With respect to President Trump’s agenda, unions are prepared to fight.  Per Bloomberg BNA, “labor groups representing immigrants, women, blacks, Latinos and Asian-Americans vowed collective action against President Donald Trump at a rally in Washington Jan. 27” and “[Representatives from AFL-CIO constituency groups] promised grass-roots organizing with regional union chapters to protect immigrants and union workers and to ensure sanctuary cities remain.”

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When They Talk About Joint Employers, Republicans Are Either Lying or Confused

Now that Republicans in Congress are about to get a President who will sign their bills into law, they are eager to overturn even the most modest pro-worker measures that President Obama’s appointees were able to implement.  One of the top items on the chopping block is the “joint employer” standard that the NLRB announced in 2015 in its Browning-Ferris Industries decision.  What’s unfortunate is that rather than debate the Board’s decision on the merits, Republicans in Congress insist upon misrepresenting the decision and its effects.

Consider a recent column by Representative Bradley Byrne, who sits on the House Education and the Workforce Committee.  He wrote, “[t]here may be no regulation that threatens to crush small businesses and working people more than a recent ruling from the National Labor Relations Board relating to the definition of a ‘joint employer.’”  Byrne asserts that the ruling will make big firms liable for the actions of small firms, and thus they are “unlikely to do business with them anymore.”  This is simply wrong.  Joint employers are not automatically liable for each other’s actions.  Instead, under long-settled Board law, a non-acting joint employer is only liable where it knew or should have known that the other employer acted for unlawful reasons.  Apart from being wrong as a matter of law, the claim is absurd as a matter of common sense.  It’s like saying no homeowner would ever hire an electrician because there are some circumstances where the homeowner could be liable for actions taken by the electrician.  In fact, the Browning-Ferris decision wasn’t about liability, but rather about the right of workers to bargain with actual decision-makers.  The workers in Browning-Ferris were employed by a staffing agency, but Browning-Ferris retained the right to dictate who could work at the facility, it set schedules, controlled the speed of the production line, and imposed a maximum wage rate for the agency’s employees.  When the workers formed a union, they wanted the right to bring Browning-Ferris to the table, so that they could bargain about these vital issues.  Byrne also makes the unsupported claim that 600,000 jobs “could be either lost or not created” because of the Browning-Ferris decision.  But, at most, the decision might lead big firms to follow a different business model – if big firms choose to hire workers directly rather than through intermediaries, the workers’ jobs won’t disappear.

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The Obama Board’s Legacy – Part 1 of 2

This post is the first in a two-part series.

When Kent Hirozawa’s term ended last month, the NLRB was reduced to three members – two Democrats and one Republican.  By tradition, it takes three Board Members to reverse precedent, and since no proposed rules are pending, it’s fair to say that President Obama’s NLRB will not be breaking any new ground for the duration of his term.  As a result, this seems like a good time to look back on the Obama Board.  During President Obama’s two terms, the NLRB has been as noteworthy for the partisan wrangling it has generated in Congress as for substantive labor law.  The first part of this review will look at how Republican hardball tactics led to three Supreme Court cases and a change in the filibuster rules and the next installment will focus on some of the decisional highlights.

One of the most notable aspects of President Obama’s NLRB is the difficulty the President has had filling the seats of the five Board Members.  As a result, at the end of President Obama’s eight years in office, there will have been only 41 months where the Democrats had a three-person majority on the Board.  When President Obama came into office there were three vacant seats.  In April 2009, he announced his intent to nominate Craig Becker and Mark Pearce and he waited for Republicans in Congress to recommend a Republican to fill the third empty seat.  Finally, on July 9, 2009, President Obama formally sent three nominations to the Senate.  The Republican Senators on the Health, Education, Labor & Pension (HELP) committee submitted 280 questions for Becker to answer in writing.  Then Senator McCain (who you may remember lost to President Obama) insisted on holding the first hearing on an NLRB nominee since 1994.  Even after the hearing, the Republicans still would not allow an up or down vote on Becker’s nomination.  Instead, the Democrats had to file for cloture and that vote failed when 52 Senators voted for cloture and 33 voted against.  These Republican obstructionist tactics ultimately led the Senate Democrats to reform the filibuster rules so that (except for the Supreme Court) it no longer takes 60 votes to confirm a Presidential nominee.

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