Today’s News & Commentary — September 23, 2016

On September 19, Seattle City Council passed the Secure Scheduling Ordinance, which requires major retail and restaurant establishments to provide a “livable schedule” to its employees. Workers at retail and restaurant businesses with 500 or more employees worldwide (and 40+ locations worldwide for restaurants specifically) will now have the right to two weeks’ advanced notice of their schedule, a right to request their desire shifts, a right to on-call pay, and will not be eligible for back-to-back closing and opening shifts. The ordinance covers employees who spend at least 50% of their work time physically in Seattle’s limits. The ordinance will go into effect on July 1, 2017.

The EEOC has voiced its support for the NLRB’s proposed broader test for joint-employer status in an amicus brief for Browning-Ferris Industries of California v. NLRB before the Court of Appeals for the D.C. Circuit. “The EEOC’s longstanding joint-employer test is relevant to the appropriate standard under the NLRA because Title VII is based upon the NLRA, the statutes’ definitions of ‘employer’ are virtually identical, and both Title VII and the NLRA are remedial in nature,” wrote the EEOC in its brief. The NLRB’s new proposed joint-employer test would be in sync with the EEOC’s. The “new” joint-employer standard is actually an “older” standard, one set out in NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982). The standard makes two or more employers joint employers where they are “employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”

The 11th Circuit held 3-0 in EEOC v. Catastrophe Management Solutions that banning employees from wearing their hair as dreadlocks is not racial discrimination. The EEOC alleged that the “prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” The court ultimately decided against the EEOC’s interpretation on the grounds that hairstyle was not an immutable trait. However, the opinion acknowledged that “in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception of ‘race’ and encompassing cultural characteristics associated with race.”

The Obama Board’s Legacy – Part 1 of 2

This post is the first in a two-part series.

When Kent Hirozawa’s term ended last month, the NLRB was reduced to three members – two Democrats and one Republican.  By tradition, it takes three Board Members to reverse precedent, and since no proposed rules are pending, it’s fair to say that President Obama’s NLRB will not be breaking any new ground for the duration of his term.  As a result, this seems like a good time to look back on the Obama Board.  During President Obama’s two terms, the NLRB has been as noteworthy for the partisan wrangling it has generated in Congress as for substantive labor law.  The first part of this review will look at how Republican hardball tactics led to three Supreme Court cases and a change in the filibuster rules and the next installment will focus on some of the decisional highlights.

One of the most notable aspects of President Obama’s NLRB is the difficulty the President has had filling the seats of the five Board Members.  As a result, at the end of President Obama’s eight years in office, there will have been only 41 months where the Democrats had a three-person majority on the Board.  When President Obama came into office there were three vacant seats.  In April 2009, he announced his intent to nominate Craig Becker and Mark Pearce and he waited for Republicans in Congress to recommend a Republican to fill the third empty seat.  Finally, on July 9, 2009, President Obama formally sent three nominations to the Senate.  The Republican Senators on the Health, Education, Labor & Pension (HELP) committee submitted 280 questions for Becker to answer in writing.  Then Senator McCain (who you may remember lost to President Obama) insisted on holding the first hearing on an NLRB nominee since 1994.  Even after the hearing, the Republicans still would not allow an up or down vote on Becker’s nomination.  Instead, the Democrats had to file for cloture and that vote failed when 52 Senators voted for cloture and 33 voted against.  These Republican obstructionist tactics ultimately led the Senate Democrats to reform the filibuster rules so that (except for the Supreme Court) it no longer takes 60 votes to confirm a Presidential nominee.

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Today’s News & Commentary — September 22, 2016

In the face of mounting opposition, Federal Reserve Chair Janet Yellen delayed an interest-rate increase again to give the economy “more room to run.” While admitting the strengthening case for a rate raise, Yellen argued that it made sense to put off the raise amid signs that discouraged Americans who previously dropped out of the labor market are now looking for work. According to Bloomberg, the Fed also scaled back the number of hikes it expects next year, from three to two.

Hillary Clinton published a piece in The New York Times titled “My Plan for Helping America’s Poor.” After touting the progress made during President Obama’s terms —there are 3.5 million fewer people living in poverty in 2015 than just a year before, median incomes have risen by 5.2 percent, gains in household income levels, and gains made under the Affordable Care Act—the piece focused on the work still to do. In addition to promising investment in infrastructure, manufacturing, technology, small businesses, and clean energy, the op-ed focused on her plan to create more affordable housing. Secretary Clinton wrote that she would take steps such as expanding Low Income Housing Tax Credits, modeling an anti-poverty strategy on Congressman Clyburn’s 10-20-30 plan, and a focusing on minority communities as ways to remedy the current reality that “nearly 40 percent of Americans between the ages of 25 and 60 will experience a year in poverty.”

Indian Prime Minister Narendra Modi is undertaking an overhaul of his country’s labor laws, hoping to create millions of new jobs by making it easier to hire and fire employees. A part of his 2014 reform agenda, other legislative fights and union opposition have stalled his efforts thus far. According to Reuters, however, two key bills covering industrial relations and wages, are heading to the cabinet this month. More than a million workers went on strike on September 2 to protest against the policies, and it is also unclear how the laws would effect the nine out of ten Indians who are employed in the informal sector, where labor laws are rarely enforced.

According to a report published on Wednesday by the National Academies of Sciences, Engineering and Medicine data shows immigrants do not take American jobs and lower wages by working for less, with some caveats. Reported by The New York Times, the study showed little to no negative effect on wages, but did point out that teens who did not finish high school and immigrants from earlier generations may have felt some impact. It also showed that high-skilled workers have a positive effect on the economy. The report did show “more mixed” results when discussing the level of burden immigrants might have on the government’s budget in terms of services such as education.


Guest Post: The Blue Eagle May Be Ready to Fly Again

Charlie J. Morris is Professor Emeritus at the Dedman School of Law, Southern Methodist University.

Thank you, Andrew Strom, for calling attention to and describing NLRB Member Kent Y. Hirozawa’s end-of-term concurring opinion in Children’s’ Hospital and Research Center of Oakland, 264 NLRB No. 114 (2016), in which he unobtrusively began the belated process of opening a door to members-only minority-union collective bargaining.  This is an opening to what should eventually allow the NLRB to usher in that little-known rational bargaining practice, allowing it to become a viable alternative to the current backward-procedure of first requiring a union to prove its majority, rather than first allowing it to build that majority through a logical incremental process of bargaining for its members only.  Such bargaining would be in accord with the clear language of the National Labor Relations Act.  Hirozawa correctly held that the bargaining “right enforced by Section 8(a)(5) is unencumbered by any requirement of Section 9(a) [majority] status.”  He accurately pointed out that Congress had made it clear in the text of Section 8(a)(3) with reference to closed shops (and retained for the Taft-Hartley’s change to union shops) that the same restrictive language indicated that it knew well how to confine all bargaining to Section 9(a) majority unions—had it so intended.  Furthermore, as I pointed out in my 2005 book, The Blue Eagle At Work, this rejection of a majority requirement was also confirmed by Congress’s specific rejection of “smoking gun” alternative language that would have expressly confined all collective bargaining to representatives “chosen as provided in Section 9(a),” i.e., “designated” or “selected” by a “majority” of bargaining-unit employees.

Although I did call contemporary attention to members-only bargaining in the Blue Eagle, the concept is not new.  It was widely used during the decade following passage of that Act in 1935.  During those early years, minority-union members-only contracts became as prevalent as majority-exclusivity contracts, and their numerical coverage of employees may have been even greater.  Those contracts almost always developed into conventional majority/exclusivity Section 9(a) contracts.

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Today’s News & Commentary — September 21, 2016

On Tuesday, the Senate Banking Committee held a hearing on Wells Fargo’s sham account case.  As the New York Times reports, Wells Fargo employees created nearly two million fake accounts to pad their sales numbers.  At the hearing, senators noted that top executives had faced no real consequences, while the bank’s lowest-paid workers had “borne the brunt of the punishment.”  As Senator Elizabeth Warren put it to John G. Stumpf, Wells Fargo’s chief executive, “Your definition of accountability is to push this on your low-level employees. This is gutless leadership.”

Forbes reports that 21 states have filed a lawsuit against the Department of Labor to block its new overtime rule.  The suit, filed in the Eastern District of Texas, alleges that the rule is in contravention of the Tenth Amendment and the APA.  Most of the states party to the lawsuit have also joined lawsuits seeking to block other Obama administration rules, including the challenge to DACA, the Clean Water Rule, and the Clean Power Plan.

According to Politico, the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc. has served as a catalyst for state legislation protecting pregnant workers from workplace discrimination.  In Young, the Court held in favor of a pregnant UPS worker who alleged that she had been denied pregnancy-related accommodations as required by the Pregnancy Discrimination Act.  Although the holding was a narrow one, it seems to have prompted legislative action.  Emily Martin, general counsel at the National Women’s Law Center, explained that since the decision, “we’ve seen even more bipartisan support for the notion that pregnant workers … should be entitled to very reasonable accommodations at work.”

A Thai court has found a British labor activist, Andy Hall, guilty of criminal defamation and violating cyber crimes law.  The charges came in connection with his work on a 2013 report accusing Natural Fruit, a Thai-based company, of violating its workers’ rights.  Hall was originally sentenced to three years in prison and fined $4,300, but the judge suspended his sentence.  Still, human rights advocates are worried that the case will seriously hinder efforts to investigate and monitor workers’ rights abuses in Thailand.  Coverage is available at the New York Times, Human Rights Watch, and Jurist.

Today’s News & Commentary — September 20, 2016

Transportation Secretary Anthony Foxx issued a policy paper that outlines 15 points he expects automakers to comply with as self-driving cars hit the road. The paper hits on four main points: what the vehicles need to do to be safe, what federal and state governments need to do, how the Department of Transportation will use existing regulatory tools, and what new regulatory tools may be needed. Self driving cars have the potential to render the employee or independent contractor question obsolete for Uber and other car service companies, and have already been introduced in some American cities.

On the same line of news, Uber announced plans to open a facility in Detroit to allow it to work more closely with car companies to develop its plans for a self-driving cab fleet. The company has not yet released specifics about the plan, including how many people it plans to employ there.

G.M. and Unifor, the private sector union for auto workers in Canada, reached a deal to avert a 3,900 person strike. The parties agreed to a deal in which G.M. closes one assembly line in Oshawa, Ontario but agreed to open another one, resulting in a net increase of jobs, and moved production of an engine from Mexico to another Ontario plant. If this contract is approved by workers, Unifor will use it as a template for upcoming negotiations with Ford Motor Co. and Fiat-Chrystler Automobiles.

Louise Matsakis at Motherboard profiles a shipping and packing warehouse, Quiet Logistics, that “employs” primarily robot workers.  Many of those interviewed said they do not envision robot workers entirely replacing human workers, but workers themselves are not convinced.


Today’s News & Commentary — September 19, 2016

Roughly 20,000 factory workers at two GM plants in Canada will strike if a new contract is not signed by tonight, according to MarketWatch. The president of the union Unifor—Canada’s largest private-sector union—said that recent meetings to secure future work haven’t been successful. The factory creates engines for 15% of SUVs sold in the United States.

PBS NewsHour has a feature on the history of labor laws and farmworkers—as well as recent updates that attempt to give them more rights. The piece covers the decision to exclude farmworkers from certain labor laws, to last week in California, which passed a historic law extending overtime pay to farmworkers.

Transit agencies are partnering with Uber to supplement services, according to the Pittsburgh Post-Gazzette. In St. Petersburg, Florida, Uber riders on their way to or from transit stops get direct subsidies—half the cost of a ride, up to $3. Supposedly these systems have “helped increase ridership on their systems,” as they help solve the “first mile, last mile” problem—getting riders to and from transit stops. They’ve also saved money: the Florida public transit authority eliminated two underused routes, saving $140,000 per year, and instead spent $40,000 on the Uber subsidy. The goal, however, is to fill in the gaps where the transit systems are lacking, not to replace the transit systems altogether. According to the article, these partnerships “haven’t been viewed as a threat to union drivers.”

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