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.

How Bad Could it Get (Legally)?

It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement.  This important work is underway, with contributions from academics, labor lawyers, union organizers, and others.  Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review.  Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed.  This kind of optimism is necessary to visionary thinking, and it’s badly needed today.

But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years.  Most of us know much of this already, so you might wonder what the point of such a morose exercise would be.  The idea is not to wallow.  To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”

Some caveats.  One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely.  Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts.  Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible.  For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).

All that said, here’s what seems within the realm of the plausible: Continue reading

Today’s News & Commentary — April 11, 2017

Minors in Texas may soon need parental approval to join a labor union.  According to the Texas Tribune, “minors in the state may be required to obtain parental approval before they can join a labor union under a proposal the Texas Senate tentatively approved along party lines Monday.”  The legislator who introduced the bill “said she filed the measure in response to concerns from a constituent whose daughter ‘was persuaded to join a union without fully understanding’ the terms of agreement.”  For their part, “some union leaders argue the bill would target minors employed by grocery stores while unfairly limiting their freedom and opportunity in the workplace.”

Voters in Missouri may be deprived the opportunity to vote on the state’s right-to-work legislation, if a lawsuit is successful.  The St. Louis Post-Dispatch reports that “supporters of Missouri’s new ‘right to work’ law have filed another lawsuit seeking to scuttle an attempt by labor officials to put the issue before voters for an up-or-down vote.”  Labor leaders “want to give voters the chance to weigh in on the issue after it was pushed quickly through the GOP-controlled Legislature this year and signed into law by Republican Gov. Eric Greitens.”  The law is set to go into effect on August 28.  Missouri residents “can call a referendum on a new law by collecting signatures totaling 5 percent of voters from two-thirds of the state’s congressional districts.”

The Fight for $15 has been incredibly successful – but not in Baltimore.  Vox explores why the effort to raise the minimum wage in Baltimore to $15 an hour fell apart, noting the city’s financial problems and fear of ensuing job loss.

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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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It’s Time for a Real Right to Work

In 1912, when the labor leader Eugene V. Debs ran for President for the fourth time as the Socialist Party candidate, in his acceptance speech he spoke of a day when “the right to work shall be as inviolate as the right to breathe the breath of life.”  But, in the 1940s, the term “right-to-work” was hijacked by right-wing business interests, and used to describe laws that do not actually give anyone the right to work.

The failure of the labor movement to take ownership of the term “right to work,” and to adopt an alternate term for laws that exist solely for the purpose of undermining collective bargaining is both a symptom and a cause of labor’s decline.  There is an obvious parallel between the terms “right to life” and “right to work.”  But, when those who want to outlaw abortion started talking about the “right to life,” defenders of reproductive freedom immediately realized that using that terminology would inevitably lead to defeat since it’s very hard to be against a right to life.  But, where is the labor movement’s equivalent to the phrase “pro-choice?”

In his 1944 State of the Union address, Franklin Delano Roosevelt proposed a second bill of rights that included the “right to a useful and remunerative job.”  After FDR’s speech, there was an effort to pass a full employment law that would have made it the official policy of the United States to assure sufficient employment to enable all Americans to exercise the “right to useful, remunerative, regular and full-time employment.”  Needless to say, that never became law.  A watered down version of the bill was enacted in 1946, and in 1978, the Humphrey-Hawkins Act declared as a national goal “the fulfillment of the right to full opportunities for useful paid employment at fair rates of compensation of all individuals able, willing, and seeking to work.”  The Humphrey-Hawkins Act expired in 2000.

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Labor and Politics: Learning the Right Lessons from 2016

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

A presidential loss, especially an unexpected one, produces no shortage of scapegoating and second-guessing among activists and insiders of the defeated party.  In this regard, the otherwise unprecedented 2016 election proved utterly normal.  The emerging narrative pins the Clinton campaign’s shocking Electoral College defeat on its neglect of the white working-class, a constituency buffeted by decades of de-industrialization and declining union memberships.  As evidence, adherents of this theory point to Rust Belt counties and states that flipped from blue to red between 2012 and 2016, and exit polls showing a smaller share of union households backing Hillary Clinton than Barack Obama.  Journalists have had no trouble digging up disaffected white working-class voters who cast their first Republican ballot this year.

What’s remarkable is how quickly this narrative congealed into conventional wisdom.  As an interpretation of what went wrong, it leads to one obvious path for Democrats to take going forward, summed up here by the Times’ David Leonhardt: “Figuring out how to win more white working-class votes, especially in the Midwest, has to be at the center of any Democratic comeback plan.”

Choosing this path would be a mistake.

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Weekend News & Commentary — November 12-13, 2016

The postmortem continues, as commentators seek to understand the reasons behind Donald Trump’s win this week.  Writing for The Wall Street Journal, Professor Michael Kazin argues that the decline of unions had an important role, creating an institutional vacuum that left white working-class workers vulnerable to Trump’s brand of populism.  NPR breaks down the numbers, suggesting that the GOP’s huge gains in certain states — especially among uneducated white voters — are a sign of the Democrats’ “cratering with blue-collar white voters.”

Meanwhile, questions abound over what a Trump presidency will mean for workers.  On the campaign trail, President-elect Trump talked tough on trade and promised to keep jobs in the United States.  Now, his supporters are counting on him to keep those promises.  The Christian Science Monitor takes a look at whether Trump can deliver on his promise to coal country to “bring the . . . industry back 100 percent.”  And The New York Times shares the perspective of factory workers in Indiana who — having cast their ballots for Trump — now expect him to stop their plants from moving overseas.

Commentators have also started to speculate over the details of the next President’s labor policies.  Fast Company offers a few predictions, including new restrictions on hiring foreign workers and a potential reshaping of the NLRB.  POLITICO weighs the chances that the Labor Department’s overtime rule, set to take effect this December, will survive the Trump administration unscathed.  JD Supra looks at how the Trump administration could shake up the EEOC, starting with personnel changes and a tighter budget.

And finally, lest we forget another big winner in this week’s election, The National Review discusses the renewed momentum of the right-to-work movement.  Republicans who campaigned on right-to-work platforms in three states — Kentucky, Missouri, and New Hampshire — could now be in a position to pass legislation making union dues optional.  Moreover, now that the GOP will be filling the vacant seat on the Supreme Court, the 4-4 split in Friedrichs could also tilt in their favor, extending right-to-work to government employees nationwide.