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.

Workers Understand a Boss’s “Hopes”

According to the sworn testimony of former FBI Director James Comey, President Trump pulled him into a private meeting in the oval office and said, about the FBI’s ongoing investigation of former national security advisor Michael Flynn, “I hope you can let this go.”  One question raised by the testimony is whether it was reasonable for Comey to interpret President Trump’s statement as a directive.  While labor law does not have a direct answer, the National Labor Relations Board has held that when a company president expresses his “hope” to a worker, it can be coercive.

In a 1995 case, KNTV, Inc., the company president had a private meeting with a reporter where the president told the reporter, “I hope you won’t continue to be an agitator or antagonize the people in the newsroom.”  The NLRB found that the statement was coercive in large part because it was made by the company’s highest ranking official and it was made in a meeting that the reporter was required to attend alone.  Sound familiar?

In other words, the expert agency that regularly adjudicates disputes about whether particular statements by an employer rise to the level of coercion has held that when the president of an organization expresses his “hopes” in a private conversation with a worker, those comments will likely have a “chilling effect” on the employee.

Today’s News & Commentary — May 3, 2017

Hollywood writers have achieved victory.  As the New York Times reports, the Writers Guild of America reached a “middle-of-the night deal” with the Alliance of Motion Picture and Television Producers, the group that bargains on behalf of studios.  As the Los Angeles Times put it, the deal itself “was a pulse-pounding climax that a Hollywood screenwriter might have conceived.”  Although the union did not get everything it wanted — namely, uniform pay for writing done across platforms — it won major concessions from the studios, including better pay, job protection for paternity leave, and a bailout for the union’s struggling health insurance plan.

The New York Times also weighs in on the “lopsided pay structure in coal.”  While coal executives take home huge sums of money — recent bonuses have been in the $10-$15 million range — pay for the average coal worker has stagnated.  From 2004 to 2016, the average salary of chief executives in the coal industry increased as much as five times faster than the salaries of lower-wage coal workers.  Although this disparity reflects widening income inequality across all sectors of the American economy, pay for coal executives “grew much faster, on average, than that of their counterparts across the wider economy, while the average pay for coal industry construction workers failed to keep up with similar jobs in other fields.”  As the Times also notes, the “yawning gap takes on an added significance” in the coal industry since “Trump has made lifting the fortunes of blue-collar and rural Americans a centerpiece of his administration.”

At U.S. News and World Report, Andy Stern addresses the subject of automation and its effect on jobs.  As Stern posits, “automation is increasingly replacing jobs and leaving too few good new jobs in its wake,” but elected officials have failed to take action. According to Stern, “[i]f we want an economy that allows everyone to be economically secure, we need our economists to get out of their bubble and thinking about how we can rightfully address automation.”

According to CNBC, industries from hospitality to landscaping are struggling to find seasonal help because the government “tightened up on visas” for temporary foreign workers.  At-issue are H-2B visas, which are issued to temporary, non-agricultural foreign workers, with a cap of 66,000 visas per fiscal year.  Although the 2015 spending bill exempted returning workers from the cap, no such exception was passed for 2017. On Monday, lawmakers introduced a government spending bill that would increase the number of allotted H-2B visas to about 130,000, but even if the measure passes, it will take weeks for the visas to be processed.  The result?  Many workers “probably won’t arrive in time for Memorial Day and maybe not until after the Fourth of July.”

Guest Post: The People’s Climate March and Labor

Renee Gerni is an Assistant General Counsel at the Service Employees International Union. The views expressed in this post are solely her own and should not be attributed to SEIU.

This past weekend, when hundreds of thousands rallied in the People’s Climate March, a significant number of the marchers were union members.  In fact, the labor movement has long been involved in the fight for environmental justice. For unions like SEIU, the strength of commitment to this fight has only increased in recent years as union members witness firsthand the immediacy of the climate crisis. The struggle over the Dakota Access Pipeline, and the effects of more frequent superstorms like Hurricane Sandy and Hurricane Katrina, evidence an unavoidable conclusion: environmental crises hit hardest and first poor communities and people of color.  Union members understand that environmental injustice is one of the most significant threats to the achievement of economic and racial justice for working families. Climate change is creating increased pollution, which is already affecting public health.  We know that one in six black children has asthma, as compared to one in nine children overall.  Black children are three times more likely to suffer asthma attacks that require hospitalization and twice as likely to die of asthma. This is no accident. Coal-fired power plants are the single biggest source of carbon pollution in the U.S. and are disproportionately located near (i.e. within three miles of) communities of color and low-income communities. This proximity exposes these communities — who too often lack the economic resources to prevent adverse health outcomes — to dangerous particulate matter and ozone precursors that cause and contribute to respiratory illnesses like pulmonary disease and lung cancer.

Weekend News & Commentary — April 29-30, 2017

Yesterday was the 100th day of the Trump presidency, and the report cards are in.  In an op-ed published in The Washington Post, President Trump maintained that he has “kept his promise[s]” to the American people.  He pointed to his achievements in curbing immigration and overhauling the United States’ trade relationships.  But there’s one area in which he has few concrete wins to show: jobs.  The White House website claims that the Trump administration has created “over 500,000 new jobs” — but the number is probably closer to 300,000, and it’s far from clear whether Trump can take credit for those, according to NPR.  The Washington Post looks ahead to what the President’s next steps will be, as he tackles tax reform with the hopes of stimulating job growth.

New research has confirmed what has long been suspected: income inequality reduces economic opportunity.  In a new paper published in Science, Stanford economist Raj Chetty tracked rates of income mobility since the 1940s, finding a distinct downward trend: whereas 90% of children born in 1940 earned more than their parents at the age of 30, only 50% of children born in the 1980s have done the same.  In the face of widening income disparities, the American dream could be “fading.”  Read the accompanying essay from economists Lawrence Katz and Alan Krueger here.

Are women allowed to love their jobs?  That’s the question that Jill Filipovic tackles in The New York Times this weekend, reflecting on a culture that values work as a crucial component of male identities, but “remains ambivalent about whether adult women working . . . is a good thing.”  She suggests that, until this attitude changes, workplace reforms for women — however much needed — could be slow to materialize.

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To Tweet or Not to Tweet? Public Employee Rights During Free Time

Since President Trump took office, public participation in mass forms of civic participation has increased dramatically. The Women’s March, in Washington, D.C. and sister cities across the country, was the largest march in U.S. history. Thousands gathered at airports to protest the Muslim Ban. Activism generated more protests, like “A Day Without Immigrants,” “A Day Without Women,” and to come, a March for Science. But what role can employees working for the federal government have in speaking out? Mounting public pressure against employees highlights the need to educate public employees on their rights to engage in civic discussion and protect their interest in political speech.

A Park Ranger Started the Movement

The first display of public employee participation in civic discussion around Trump administration actions and policies began on January 20th, when the National Park Service (NPS) retweeted a side-by-side comparison of 2009 and 2017 inauguration crowds. The NPS later deleted the retweet and spokesman Thomas Crosson apologized for “mistaken RT’s.” In the first week of his presidency, President Trump instructed the Environmental Protection Agency (EPA) and the Interior Department, which oversees the NPS, to cease communicating through social media. But on January 24th, the Badlands National Park, tweeted a series of climate change data, including “Burning one gallon of gasoline puts nearly 20 lbs of carbon dioxide into our atmosphere. #climate.” By nightfall, the posts were deleted and a NPS official said that the posts were improperly posted by a former employee.

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Today’s News & Commentary — April 19, 2017

The New York Times weighs in on the effect that Trump’s “Hire American” order may have on tech worker visas.  According to the Times, the order “represents a small win for bigger tech companies,” but may hurt smaller technology companies that “cannot afford to pay high salaries and are already struggling to attract talent.”  Senator Schumer, however, had a different take: “This does nothing,” he said. “Like all the other executive orders, it’s just words — he’s calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.”

Is O’Reilly no longer a factor?  That’s the question being asked at Politico, which cites the Wall Street Journal’s report that Fox News “is preparing to cut ties with . . . O’Reilly.”  Since an April 1 New York Times story broke the news that Fox had paid out about $13 million to settle sexual harassment allegations against O’Reilly, pressure has been mounting on Fox to fire its biggest star.

As the New York Times puts it, “[t]he threat of a Hollywood strike is getting real.” Members of the Writers Guild of America will begin voting today on whether to authorize a walkout.  If members approve a strike, it could have “serious implications.” When writers went on strike a decade ago, it cost the Los Angeles economy an estimated $2.5 billion, affecting everyone from the writers themselves to caterers, limo drivers, and florists.  As for how a strike would affect viewers, the Times explains that late-night comedy shows would screen reruns, some scripted series would be delayed, and daytime soap operas would probably end (unless producers bring in non-union writers).  A strike might also speed the shift from network viewing to Netflix and Amazon.