Today’s News & Commentary — May 29, 2017

Senator Mark Warner (D-VA) and Congresswoman Suzan DelBene (D-WA) introduced legislation on Thursday to promote innovative ways to offer portable benefits to workers engaged in temporary, contract, or on-demand work.  The Portable Benefits for Independent Workers Pilot Program Act would establish a $20 million grant fund for states, local governments, and nonprofit organizations that design, implement, and evaluate models to deliver employment benefits that independent workers can maintain as they move from job to job.  According to BuzzFeed News, Senator Warner recognizes the criticisms that his portable benefits proposal does not require cost-sharing and may make it easier for companies to misclassify employees as independent contractors, but underscored that “[the proposal] tries to meet the workforce where it’s at, and where it’s headed.”

Last week, the Rhode Island Superior Court held that a local company is guilty of discrimination for refusing to hire a prospective employee that actively used medical marijuana pursuant to the state’s medical marijuana program. ACLU’s Carly Beauvais Iafrate, an attorney representing the plaintiff, remarked, “This decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take.”

The Commodity Futures Trading Commission (CFTC) approved rule changes last week to increase protections for whistleblowers and improve the claims review process. The 2010 Dodd-Frank Act established the agency’s whistleblower program, which now, according to the Financial Times, allows the CFTC and whistleblowers to bring anti-retaliation actions against an employer. Furthermore, employers can no longer prohibit would-be whistleblowers from contacting the CFTC directly.

A federal district court in Pennsylvania held earlier this month that the Americans with Disabilities Act (ADA) does not exclude coverage of “disabling conditions that persons who identify with a different gender may have —such as . . . gender dysphoria, which substantially limits . . . major life activities of interacting with others, reproducing, and social and occupational functioning.”  According to JD Supra, the decision implies that transgender individuals diagnosed with gender dysphoria can seek reasonable accommodation and disability discrimination protection under the ADA.

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

Pensions v 401(k)s: An Illinois Case Study

Illinois’ pension liability is estimated to stand at more than $130 billion.  The reason behind Illinois’ ever-growing pension liability is one of debate.  Some attribute the deficit to legislators voting on pension bills they didn’t fully understand.  Others argue that politicians chose to kick the pension ball down the road to avoid raising taxes or cutting spending on their watch.  Still others, like Illinois Governor Bruce Rauner, argue the structure of the pension system itself is to blame: employees change jobs as a way to qualify for more than one pension and many seek raises in their final years as that guarantees them higher payouts during retirement

While there is much debate about the cause of the deficit, its existence is certain.  Despite being in the top 1/3 of the nation’s wealthiest states, Illinois has one of the most poorly funded retirement systems in the country.  Illinois has only funded 39 cents for every dollar it has promised to pay out in pensions. The pensions of similarly populated states like New York and Pennsylvania are far better funded, with New York at 89 percent and Pennsylvania at 62 percent, respectively.  It is clear that Illinois needs to rethink its current pension scheme.  Some groups like Illinois Policy, a conservative think tank, advocate for Illinois to adopt 401(k)s for new government workers, but the idea has not received much traction among state employees.  While the traditional debate has been between keeping traditional defined benefit plans like pensions or moving to a defined- contribution plan like a 401(k), there is a lesser explored option as well: the hybrid 401(k)-pension plan.  The hybrid plan combines the guaranteed income of a pension while lowering employer contributions with a 401(k).

Continue reading

Today’s News & Commentary — May 26, 2017

Maryland’s governor vetoed a paid sick leave bill yesterday, saying the measure would be  “disastrous to our state’s economy.”  The bill would have required employers with over 15 workers to provide at least five days of paid sick leave.  The bill, which garnered enough votes to overcome a veto, may be overridden in the 2018 legislative session.  Governor Larry Hogan had supported an alternative bill, which would have covered companies of 50 employees or larger.

Tesla announced a new VP of HR earlier this week, on the heels of a new report about unsafe working conditions at the sustainable car company’s Fremont, California factory.  As Buzzfeed News reports, Tesla has recently dealt with revelations about hazardous working conditionsracial and sexual harassment, and unfair labor practices.  (You can find some of our previous coverage about the UAW organizing efforts that led to the unfair labor practice allegations here.)  This was the third Tesla HR executive to leave this year.

The reports about President Trump’s budget continue.  AP highlights the proposed elimination of the Senior Community Service Employee Program, a 50 year-old program that gives unemployed seniors training and part-time minimum-wage jobs.  The New York Times details myriad proposals with implications for undocumented immigrants.

Boston Review published an essay about the right to strike, along with a dozen responses. Its most recent issue also features a series debating a universal basic income.

Sign of the Times?

Notable that as commentators in the U.S. call for a move from enterprise to sectoral-level bargaining, relying in part on the the French example, France’s new President wants his country to move from sectoral to enterprise-level bargaining.

Today’s News and Commentary — March 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.