Today’s News & Commentary — June 7, 2017

The Supreme Court has been asked to reconsider whether arrangements requiring non-union employees in the public sector to pay fair share or agency fees violate the First Amendment of the Constitution.  Yesterday, Mark Janus, an Illinois state employee, petitioned the Supreme Court to review the Seventh Circuit’s decision in Janus v. AFSME and consider overturning the Court’s precedent in Abood v. Detroit Board of Education.  This petition comes just one year after the Court was asked to consider its precedent in Abood in Friedrichs v. California Teachers Association but split 4-4 following Justice Scalia’s death.  A decision overturning Abood could weaken unions financially and politically.  Read more here.

Bloomberg reports that Uber terminated more than 20 employees following an investigation by the law firm Perkins Coie into reports of harassment and discrimination at the ride-sharing company.  Perkins Coie was hired along with the D.C. firm Covington & Burling to examine Uber’s workplace culture.  Perkins Coie examined 215 workplace claims but did not act in response to 100 of these human resource complaints.  Read more here.

Lyft also made the news this week.  The ride-sharing company announced a deal with NuTonomy Inc.  The two companies will work together to test self-driving cars in Boston.  Lyft has also partnered with Waymo and General Motors Co. in the race to put self-driving cars on the road.  Read more here.

The New York Times reports that the Trump Administration has moved to undercut several workplace safety initiatives.  These actions signal a shift in the direction of the Occupational Safety and Health Administration (OSHA) even though President Trump has yet to put forth a nominee to lead OSHA.  The Trump Administration has suggested changes to the beryllium rule, which was updated under the Obama Administration.  These changes might exclude some important industries from coverage.  The Trump Administration has also delayed enforcement of the silica rule and a rule mandating that employers report their violations so that they may be made publicly available online.  Furthermore, Trump’s budget indicates the Administration’s suspicion of workplace safety programs by proposing getting rid of the Chemical Safety Board and cutting a grant program which educates workers with limited English proficiency on safety hazards in especially dangerous industries.  

Upton Sinclair in Canton, Ohio: The Nightmare of Case Farms

Michael Grabell’s New Yorker piece on Case Farms’ poultry plants is a must-read. Much of it will be depressingly familiar: horrid safety and health conditions (“since 2010, more than seven hundred and fifty processing workers have suffered amputations”); repeated use of immigration sanctions to deter organizing activity (“the union received a letter saying that it had come to the company’s attention that nine of its employees might not be legally authorized to work in the United States…[s]even were on the union organizing committee…[a]ll were fired”; food workers wearing diapers because they aren’t granted bathroom breaks.  But in this 2017 version of The Jungle, one wonders how – if at all – the relevant federal agencies will respond. Hopefully not, as Grabell rightly worries, by increasing immigration enforcement during labor disputes.

Regulating Guns in the Workplace

This January, Ohio adopted a firearm regulation commonly referred to as a parking lot law.  The law’s core provision prevents both private and public employers from enforcing workplace policies that prohibit employees with concealed carry permits from keeping their firearms in their cars while in employer parking lots.  Ohio’s law is not the first of its kind.  Oklahoma was the first state to pass a parking lot law; it amended existing legislation in 2004 to protect firearm owners from prohibitions on firearms in workplace parking lots.  As of 2016, more than 20 states have enacted similar parking lot provisions.  Passed in response to robust lobbying campaigns by gun-rights groups such as the National Rifle Association, parking lot laws vary in the level of protection they offer gun owners, but most prohibit employers from asking employees if they own guns, and prohibit employers from firing employees because they own firearms.  These laws are frequently in conflict with existing workplace policies, which often limit employee’s ability to bring firearms to work.  These types of laws pose major questions about an employer’s ability create comprehensive health and safety policies.  On purely legal grounds, it is difficult to conclusively say that state legislatures’ regulation of guns in the workplace is impermissible.  However, parking lots laws undoubtedly raise significant questions about how much discretion employers should have in regulating employee conduct.

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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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Today’s News & Commentary — February 20, 2017

A former Uber engineer, Susan Fowler Rigetti, penned a brave blog post yesterday detailing her repeated sexist treatment while working for the ride-hailing company. She writes about being harassed; how she and other women engineers were discriminated against; and how Uber’s management and human resources were not just unresponsive, but actively fought back against her. The New York Times and Wall Street Journal report how, later yesterday, Uber CEO Travis Kalanick announced that the company would be launching an investigation into the allegations.

In the Washington Post, Jared Bernstein reminds us why the Department of Labor is so important in today’s times. Specifically, Bernstein talks about the “fissured workplace,” the term coined by David Weil to describe an increasing distance between employers and workers due to franchising, subcontracting, and outsourcing. This reality led the Department of Labor’s Wage and Hour Division—which was run by Weil during the Obama Administration—to be more proactive about monitoring FLSA violations. Furthermore, such a “fissuring” places renewed importance on divisions within the department like OSHA.

Acquisitions and sales are adding to worker tensions overseas. McDonald’s may sell its Hong Kong and China operations to a large franchisee, which the Hong Kong Federation of Trade Unions warns may affect worker pay. Currently most workers earn just above the current minimum wage in Hong Kong—roughly $4.20 per hour. In the UK, General Motors may sell their Vauxhall business to the French car company PSA, according to Reuters. The purchase is being influenced by “overcapacity at existing sites, Britain’s move to leave the European Union and pension liabilities,” prompting talks with trade unions.

Today’s News & Commentary — January 17, 2017

Donald Trump’s nominee for Labor Secretary, Andrew Puzer, may be having second thoughts about taking the job following intense criticism of his nomination.  CNN reports that Puzder “has voiced second thoughts in recent days, because of a relentless barrage of criticism from Democrats, labor unions and other liberal groups, a business ally and GOP sources tell CNN.”  Puzder is apparently discouraged by the required paperwork and attacks on him by Democrats, organized labor and worker advocates.  At the earliest, Puzder’s confirmation hearing would be next month.  In response to the report, Puzder tweeted that he looks forward to his hearing.

Meanwhile, Trump’s plans to increase American jobs through increased American production of goods continues to generate significant skepticism.  With respect to production of iPhones, according to technology site BGR, “if iPhone factories came to the US, you can be sure that robots would be the only ones getting more jobs.”  Any increased American production would reflect that the “relative cost of skilled labor in the US and China is such that it’s cheaper to build a robot than it is to hire one US worker to replace one Chinese worker in the supply chain.”

Education increasingly defines the ability of Americans to succeed economically.  The Associated Press notes that “Americans with no more than a high school diploma have fallen so far behind college graduates in their economic lives that the earnings gap between college grads and everyone else has reached its widest point on record.”  College-educated workers have disproportionally benefited from new jobs and wage increases following the 2008-09 Great Recession, and are far more in demand by employers.  The education gap is most significant for white men, but is true across the board, and developing the skills of non-college-educated workers is critical.

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The Safety of Taxi and Rideshare Drivers – Part 2: OSHA’s Response

This is the second part of a 2-post examination of driver safety in both the taxi and ridesharing spheres.  Part 1, which contains an extensive list of unsettling incidents that have threatened the safety of ridesharing drivers, makes it pretty clear that increasing driver safety is (or should be) a pressing concern.  This post will detail the regulatory measures that have been taken to protect taxi drivers and discuss whether similar protections would be feasible and/or beneficial in the ridesharing context. 

In the taxi cab context, OSHA has responded to these same kinds of dangers by identifying risk factors and making various recommendations.  The risk factors identified include:

  • Working with cash;
  • Working alone and in isolated areas;
  • Working at night and in poorly lit settings;
  • Working in high crime areas; and
  • Interacting with people who are under the influence of alcohol.

To help employers reduce these risks, OSHA has suggested several action steps.  Although the recommendations are “advisory in nature,” OSHA can issue citations for violations of standards, regulations, and the General Duty Clause of the OSH Act, which requires employers to furnish employees with a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to employees.

This raises the question of whether Uber, Lfyt, and other ridesharing companies should be subject to similar oversight from OSHA.

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