Today’s News & Commentary — August 26, 2016

On Thursday, the Department of Labor finalized a rule helping states create Individualized Retirement Accounts for workers who do not currently have access to such plans through their employers.  Uncertainty about the scope of the Employee Retirement Income Security Act had led to fears of preemption among states seeking to start such programs, and the rule creates a safe harbor to reduce that risk.  The San Francisco Chronicle reports that California may be the first to take advantage of the new guidance, with a bill currently pending before the state senate that would automatically enroll many of the 7.5 million Californians who currently lack access to IRAs in a state-administered plan.  The Department of Labor also announced that it will consider extending the safe harbor provisions to large municipalities and counties after a period of public comment.

Meeting with labor activists just before the opening of the annual Federal Reserve meeting in Jackson Hole, Wyoming, policymakers at the central bank defended plans to raise interest rates in the coming year.  Opponents of the potential increases argue that slow wage growth and underemployment continue to bedevil the economy, leaving the economic growth of recent years concentrated among corporate interests.  The rare public discussion revealed continuing disagreement about the strength of the economy among the Board governors, who are also tasked with keeping inflation in check.

At The Atlantic, Jonathan Timm investigates the alt-labor movement and its potential impact on historical inequalities in female union membership.  Interviewing members of these non-traditional labor organizations—especially domestic workers and restaurant employees—Timm finds that workers in fields dominated by women are increasingly being represented by alt-labor groups, which are in turn more likely than traditional unions to be led by women.

Also exploring the changing composition of the labor movement is Kate Duguid of Reuters, who takes as her starting point the recent NLRB ruling that graduate students can in some cases be employees under the NLRA.  Observing that union membership has grown among white collar workers while simultaneously declining in traditional blue collar fields, Duguid suggests that the reasons for the divergence are unclear, but that decisions like the Columbia case hasten the need to reevaluate our perception of union membership.


Today’s News and Commentary — August 24, 2016

The Washington Post reported on the backlash from yesterday’s decision by the National Labor Relations Board to allow graduate students to unionize.  The decision has been criticized by both universities and lawmakers, who believe that extending collective bargaining rights to graduate students may undermine higher education.  Peter McDonough, vice president and general counsel at the American Council on Education, said the “misguided decision… would decrease opportunities for campus jobs that help students, particularly those from low- and middle-income families, finance their education and drive up administrative costs.”  Randi Weingarten, President of the American Federation or Teachers, however, has argued that graduate students are essential employees within higher education and that “without their labor, classes wouldn’t get taught, exams wouldn’t get graded and office hours wouldn’t be held.”

A federal court in Michigan recently dismissed an EEOC claim that a transgender worker at a funeral home had a right to dress in women’s attire, reports JD Supra.  In defending the claim, the company raised the Religious Freedom Restoration Act, arguing that the home is a Christian ministry, and the worker’s request would substantially burden religious freedom.  In its ruling, the court suggested that the EEOC may have a duty to accommodate a private employer’s religious beliefs within its application of Title VII. Read the full opinion here.

The New York Times reported today that Donald Trump has shifted his tone with respect to immigration, calling for a “fair” plan after months of calling for building a wall along the border of Mexico and deporting those who came to the United States illegally.  Trump’s most recent speech on immigration, scheduled to take place this Thursday, has been cancelled without explanation.


Labor Law is Still Broken

Although we are unlikely to hear the Presidential candidates discuss this issue, a decision issued last week by the D.C. Circuit highlights the ongoing need for labor law reform.  The case, Ozburn-Hessey Logistics, LLC v. NLRB, demonstrates how employers can flout the law with impunity, frustrating the efforts of workers who want to organize and bargain collectively.

All of the following facts come from the court’s decision:  In 2009, workers began an organizing campaign at the employer’s warehouse facilities in Memphis, Tennessee.  The employer responded to the organizing campaign with a series of unlawful acts, including threatening employees, confiscating union materials, and disciplining union supporters.  A representation election took place in March 2010; the workers voted against unionization, but that the election was tainted by the employer’s unfair labor practices.  The workers regrouped and voted to unionize on July 27, 2011, even though the employer continued to commit illegal acts, including firing a union supporter and issuing a final warning to another.

When the election was over, the employer refused to bargain, forcing the union to file charges with the NLRB.  The refusal to bargain case was combined with the case involving the illegal firing and discipline, and, now five years later, the D.C. Circuit ruled against the employer on every issue.  In other words, for the last five years, the employer has unjustifiably deprived its workers of their federally protected right to engage in collective bargaining.  What are the consequences for the employer?  Exactly nothing – the only remedy is a prospective bargaining order.  What compensation will the workers receive for this deprivation of their rights?  Again, nothing!

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Today’s News & Commentary — August 23, 2016

In a 3-1 decision today, the NLRB held that “student assistants who have a common-law employment relationship with their university are statutory employees under the [Section 2(3) of the National Labor Relations Act]”. The case, discussed previously on this blog, overrules the 2004 decision in Brown University and could result in tens of thousands of new union members across the country.

The 9th Circuit became the second appellate court to uphold the NLRB’s position that the NLRA prohibits workers’ arbitration agreements from including class action waivers. The 9th Circuit became the second to agree with the NLRB’s position and now widens the  split between circuit courts, with the Second, Fifth, Eighth and Eleventh Circuit all disagreeing.

United Continental Holdings has reached two labor deals with its flight attendants and mechanics. The deals will allow for further integration between pre-merger United and Continental and provide pay raises, improved health care, and job protection for employees.

Today’s News & Commentary — August 22, 2016

Hillary Clinton has been repeating the claim that, under the Obama administration, the US has seen 15 million new jobs. According to the Washington Post fact checker, she’s off by about 5 million, earning her “three Pinocchios.” Clinton seems to be touting the range from the lowest job level during the administration to the job level today—but the low point for jobs happened a year into the Obama presidency. If you count from the beginning of the administration, only about 10.4 million private sector jobs have been created.

A report published today by British charitable group Citizens Advice notes that 60% more women “face discrimination at work for taking maternity leave as compared to last year,” according to Newsweek. Citizens Advice provides information to individuals about financial, legal, and consumer matters. They received many more complaints of mothers being made redundant, seeing a significant reduction of their office hours, or having to assume a more junior role upon returning to work.” Such stories abound despite laws against pregnancy discrimination. The press release and full report are available here.

A piece in Alternet last week, “Union and Conservative, Better Together,” argues that unions have an important effect on shaping workers’ political values—largely, “a communal spirit wins out over a narrow self-interest.” Written by Simon Greer, founder of Cambridge Health Ventures, and Andy Potter, Chief of Staff of the Michigan Corrections Officers/SEIU, the piece explores the trend of workers’ support for Donald Trump. With relatively low union participation today, Greer and Potter explain, it’s no surprise that workers today feel like they must “do it on [their] own.” The authors explain how workers’ conservative and radical values, when filtered through a union, can be “integrated into a true and coherent populist politics that is neither conventionally left nor right.”

Foxconn—the Chinese manufacturer of Apple’s iPhones—saw two deaths, including one suicide, within the last week. As reported by the Wall Street Journal, the deaths—especially the suicide, committed by a man in his first month on the job—are on many of the workers’ minds.

Weekend News & Commentary — August 20-21, 2016

In the United States, many working families can’t afford the child care they need.  The issue has attracted attention on the campaign trail, and this week The New York Times‘ editorial board weighs in, writing that affordable child care could be an effective antidote to stagnating wages and declining productivity.

Meanwhile, the debate over the “ban the box” movement continues.  Sendhil Mullainathan, a professor of economics at Harvard, questions whether the movement — designed to combat racial discrimination — might actually increase it, by causing employers to discriminate against all black job applicants instead of just those with criminal records.  This argument about “perverse consequences” is one that Professor Zatz has challenged on this blog, here, here, and here.  Professor Mullainathan suggests that banning the box will not be enough unless policymakers also confront the deeper “root causes” of workplace discrimination.

As the dust settles on the Fox News sexual-harassment scandalThe New Yorker looks back on the lessons it reveals about harassment in the workplace: first, that even successful women — in the case of Fox News, some of its most well-known female anchors — can be made victims, and second, that it can act as a serious disruption to a woman’s career, impacting advancement opportunities and even earnings.

Are robots the future of work?  Maybe, if the unions will allow it.  Slate reports that engineers have developed giant cleaning machines with the artificial intelligence to navigate on their own.  The success of this new technology will depend, however, on whether it can gain the support of unions like the SEIU.

Today’s News & Commentary — August 19, 2016

Uber is dominating the news once again. This month, the company will be launching its first fleet of driverless cars in Pittsburgh. The cars will  have “safety drivers” for the near future, but regular Uber drivers will still be out of a job. Safety drivers are trained engineers who will be accompanied by “co-pilots” taking notes on any challenges encountered by the technology.  Tablets in the back seat will encourage passengers not to speak with the humans in the front seat, so they can get used to the idea of automated driving.  In more Uber news – a federal judge has rejected the a $100 million settlement negotiated on behalf of 200,000 drivers in Massachusetts and California. Read more about the settlement and OnLabor’s Gig Economy coverage here.

Diane Furgott, volunteer advisor to Donald Trump’s presidential campaign and former chief economist to the Department of Labor under George W. Bush, writes in U.S. News and World Report that “joining a union is easy, but getting out of one is too tough for workers.” An interesting glimpse into the policy minds of the Trump campaign’s vision for workers.

Writing for The Street, Jim Cramer takes a look at Walmart’s excellent performance over the last quarter and suggests that increasing employee wages might have been the magic ingredient. Increased wages might mean less employees lost to competitors such as Target, he writes, which means  lower turnover and reduced training costs for Walmart stores. Walmart workers have been fighting hard for the pay raises they won, but many are still pushing for a $15/hr wage. Read more about Walmart workers’ campaign here.