Weekend News & Commentary — June 10-11, 2017

Lawmakers are moving to reform the H1-B visa program, a hotly contested temporary visa program for specialized workers.  According to Politico, Senator Chuck Grassley met with Labor Secretary Alexander Acosta Thursday to discuss the program.  In the past, Grassley has stated that the program is “short on enforcement” and has co-sponsored a bill with Senator Dick Durbin to reform the program to increase enforcement.  On the other hand, Senator Orrin Hatch is expected to introduce a bill in the upcoming weeks expanding the program from 65,000 to 115,000 and lifting the cap on visas for applicants with Master’s degrees or higher.

The Department of Labor announced Thursday night that it would be taking steps to reverse the Obama-era “persuader rule” requiring companies to disclose contacts with consultants in response to unionizing efforts.  The regulation, which was finalized in 2016 but has not yet taken effect due to a nationwide injunction issued last November, would require companies to disclose “actions, conduct or communications” they’ve pursued to “affect an employee’s decisions regarding his or her representation or collective bargaining rights.”  According to the Washington Post, the Labor Department announced it would be issuing a Notice of Proposed Rulemaking to take public comment on rescinding the rule altogether. AFL-CIO spokesperson Josh Goldstein has disagreed with the proposal, saying “Corporate CEOs may not like people knowing who they’re paying to script their union-busting, but working people do.”

Tech companies in Silicon Valley may be the next sector to see a wides-scale push for unionization among its low-wage workers like janitors, security guards, food service workers, and shuttle bus drivers.  Salon reports that in January, thousands of security guards working for companies like Facebook and Cisco voted to unionize, and will be represented by SEIU United Service Workers West in upcoming labor negotiations.  According to Jeffery Buchanan, co-founder of labor rights group Silicon Valley Rising, this is part of a broader effort to push tech companies to take more responsibility for these workers, who are often hired through outside contractors and make as little as $20,000 per year.

DOL Withdraws Weil Memos on Misclassification and Joint Employment

The Department of Labor announced today that it has withdrawn two memos (so-called Administrator’s Interpretations, or AIs) issued by David Weil’s Wage and Hour Division in 2015 and 2106. The first AI concerned the definition of employment under the Fair Labor Standards Act and helpfully clarified existing law regarding the distinction between employees and independent contractors.  The second AI dealt with the related question of how to determine joint employment relationships under the Fair Labor Standards Act and the Migrant and Seasonal Worker Protection Act.  We analyzed (and lauded) the first AI here and the second one here.  The DOL appears to have removed the AI’s from their website; they’ll remain available here and here.

Two points.  First, the AIs interpret existing law – they don’t make new law – and so the DOL’s action today doesn’t formally change anything.  Second, removing the Weil memos does, however, signal the direction that this Department of Labor intends to head. For one thing, it indicates that Acosta’s DOL may refuse to interpret broadly the definitions of employment and joint employment under statutes that are meant to be read broadly.  For another thing, it indicates a backtracking on the Department’s efforts to provide compliance assistance in two critical, and complicated, areas of employment law.


Weekend News & Commentary — May 27-28, 2017

Democratic lawmakers, led by House Minority Leader Nancy Pelosi, have pledged to increase the minimum wage to $15 within the first 100 hours if Democrats take back control of the House in 2018.  According to PoliticoPelosi endorsed a $15 minimum wage back in 2015, and her recent promise to increase the minimum wage drew widespread support from the Democratic Party. Senate Minority Leader Chuck Schumer has called for support from the White House, saying that President Trump should “stick up for working people by supporting our bill.”

Republican Senator Johnny Isakson reintroduced a bill last week aimed at reversing a 2011 decision by the National Labor Relations Board to permit “micro unions.” In that case, discussed here, the Board ruled that a group of Certified Nursing Assistants at  a nursing home could legally form a union, as they consisted “of a clearly identifiable group of employees who share a common interest.” The decision has been criticized as allowing for the possibility that a workplace will be organized into multiple small groups of employees, fracturing the workplace and making it difficult for employers to manage their labor relations.  According to The Hill, the Representation Fairness Restoration Act, would reverse that ruling by requiring that a union represents all workers in a “class or craft.”

The Kentucky State AFL-CIO and Teamsters Local 89 filed a lawsuit to strike down Kentucky’s new right-to-work bill, claiming that the law is an “unconstitutional taking” from unions who are required to represent all employees in a union shop regardless of whether they pay dues under the new law. According to the Courier-Journal, the law was a priority for members of the Kentucky Chamber of Commerce for years, and it passed early in 2017.  Irwin Cutler, an attorney for the AFL-CIO, stated that the law creates a free-rider dilemma for Kentucky labor unions, as  employees who do not pay dues “are people who are getting the benefits of the contract – the wages, the benefits, the protection against unjust termination – and they don’t pay anything for it. That constitutes, under the Kentucky Constitution, an unlawful taking of the services, the property of the labor unions.”  The group also claims that the law discriminates against labor unions, as other organizations are permitted to require dues from those who benefit from their services.

In the face of recent allegations by the Department of Labor that Google systematically underpays female employees, the company is attempting to fight the DOL’s demands that it turn over internal compensation data, arguing that it would be too expensive to produce.  The DOL maintains that, as a federal contractor, Google is required by law to turn over internal compensation data to prove that it is not violating equal employment laws.

Today’s News and Commentary — May 25, 2017

The Department of Labor has taken formal steps towards repealing the ‘persuader rule,’ a regulation that has been in full effect for less than a year.  As we summarized last May, the persuader rule was the Obama Department of Labor’s attempt to plug a loophole in the Labor Management Reporting and Disclosure Act: it extends reporting requirements to management consultants who are involved in anti-union campaigns but don’t have direct contact with employees.

President Trump released his proposed budget on Tuesday, and analyses continue to emerge.  Sharon Block argues in Democracy Journal that proposed allocations for the National Labor Relations Board and the Office of Labor-Management Standards confirm President Trump’s anti-union stance.  The New York Times observes that the proposed budget–and the Trump Administration more generally–see unemployment as the result of choice.  This explains the budget’s cuts to public benefits and limited appropriations for support and job training.  We recapped early coverage yesterday.

Emmanuel Macron won the French presidency on a platform emphasizing pro-business reforms to the labor market.  Now, he is trying to deliver.  His proposal would make it easier to hire and fire workers and would replace sector-wide negotiation with company-wide negotiation.  Employers are urging speed while union leaders have called for slower consideration.  Reuters notes that France’s private sector has grown quickly since Macron’s election, with companies attributing that growth to optimism associated with his victory.

“The big divide in America is not between the coasts and the interior. It’s between strong communities and weak communities.”  The New York Times’ Thomas Friedman makes this pronouncement in a travelogue-style op-ed about three communities in middle America.  Friedman visited towns and cities in Tennessee, Kentucky, and Indiana and found three main sources of optimism: forward-thinking local governments, collaboration between business and educational institutions, and the potential for emerging technologies like 3D printers to decentralize manufacturing.

Guest Post: Curtis Ellis Considered to Lead the Bureau of International Labor Affairs

Bloomberg/BNA’s Ben Penn is reporting that the White House is considering appointing Curtis Ellis to lead the Bureau of International Labor Affairs at the Department of Labor.  Ellis, a Steve Bannon associate, has written that he believes progressives “literally” want the death of white working people and that the Obama Administration sought to “liquidate” American workers through TPP.  He also called job training for unemployed workers “re-education and extermination.”  As the head of ILAB, Ellis would be responsible for representing the Department of Labor in international forums.  Read Penn’s full report here.

Today’s News & Commentary — April 6, 2017

The Department of Labor has once again delayed the implementation of the Obama Administration’s “Fiduciary Rule,” previously slated to take effect on April 10. According to Forbes, the DOL has responded to President Trump’s February 3 executive order to review the rule by postponing the rule’s implementation until June 9. The comment period on issues raised by President Trump remains open until April 17.

Law360 reports that U.S. District Judge Cathy Seibel denied conditional certification to a nationwide class of Papa John’s International Inc. delivery drivers in Durling, et al. v. Papa John’s International, Inc., Case No. 7:16-CV-03592 (CS) (JCM) (S.D.N.Y. Mar. 29, 2017). The drivers alleged that the company failed to sufficiently reimburse them for the cost of their vehicle expenses. The court reasoned that the absence of any evidence of common policy that violates the FLSA is enough for employers to defend their pay practices, noting that evidence of underpaid workers at few dozen corporate stores and two franchisees is insufficient to certify a class comprised of more than 3,300 restaurants.

The Office of Federal Contract Compliance Programs (“OFCC”) released its 2017 Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark of 6.7%. Federal contractors use this figure to evaluate their veteran hiring efforts. This year’s benchmark is slightly lower than 2016’s Benchmark of 6.9%.

As noted on the blog, five women have received settlements totaling $13 million following accusations of sexual harassment by Bill O’Reilly. The revelation sparked an online conversation under the hashtag #droporeilly under which an outpouring of women have described years of workplace mistreatment. The New York Times shares some of these narratives.

Guest Post: A Letter from Sharon Block

Sharon Block is the Executive Director of Harvard University’s Labor and Worklife Program.  She formerly served in the Obama Administration as the Principal Deputy Assistant Secretary for Policy at the Department of Labor and Senior Counselor to the Secretary of Labor. 

Dear Friends:

Two months ago, I walked out of the Frances Perkins Building in Washington and helped turn off the lights on the Obama Administration’s Department of Labor.  As the head of the Department’s policy office and Senior Counselor to Secretary of Labor Tom Perez, I left proud of what we had accomplished to expand opportunity for American workers. I was also acutely aware that much remained to be done.

My life and the condition of our country has changed a great deal during these past two months.  I am thrilled to be embarking on a new professional journey here at the Labor and Worklife Program at Harvard Law School and honored to have the opportunity to work with Professors Richard Freeman and Ben Sachs, the program’s faculty directors.  I am humbled by the responsibility of taking over the program that my remarkable predecessor, Elaine Bernard, so successfully built over the past 30 years and by the magnitude of the challenges facing American workers today.

I come to the Labor and Worklife Program committed to continuing its core mission:  to take advantage of the unique Harvard University community to bring rigorous, creative and serious problem-solving efforts to meet today’s challenges and prepare for the opportunities of tomorrow.  A key component of my commitment is to continue the proud tradition of the Harvard Trade Union Program.  I believe that it is more important than ever, as the labor movement faces unprecedented challenges, that a new generation of leaders benefit from the unparalleled training that the HTUP has provided for 75 years.