Today’s News & Commentary — September 30, 2016

As of yesterday, the federal government will start requiring contractors to provide paid sick leave to their workers. Any company contracting with the federal government must give workers one day of sick leave for every 30 days worked, for up to seven days. In announcing the new rule, President Obama said, “When people don’t have paid sick days, they might have to choose between taking care of themselves and putting food on the table… [W]hen a child gets sick and has to stay home, parents may have no choice but to care for them and lose a day’s pay as a result. That’s simply not a tradeoff the wealthiest nation on Earth should be asking working parents to make.” Notably, the rule includes both physical and mental illness.

California also passed an noteworthy bill yesterday that will automatically enroll workers in a state-run retirement savings plan. The plan applies to workplaces with five or more employees and it is estimated that around seven million workers will have access to the program. Though workers can opt-out of the plan, the default will be for employers to automatically deduct 3% off each paycheque, to be put into a savings fund. Time reports that “half of all households age 55 and older have no retirement savings. Even those who have 401(k)s are failing to save enough for a comfortable retirement.” About 30 states have plans to set up automatic retirement plans and will likely be watching California as they implement this one over the next few years.

In an article titled “The Forgotten Providers”, The Atlantic takes a deep dive into the challenges facing home-care workers, addressing the legacies of racism and sexism that affect working conditions in this fast-growing sector. Home-care work is expected to create more jobs in the next decade than any other occupation, but protections in the industry are thin because domestic work is exempted from many of the provisions in the National Labor Relations Act, and the Fair Labor Standards Act. Today “over a quarter [of homecare workers are] living under the poverty line and more than half [are] reliant on public assistance.”

And The Marshall Project published a helpful primer on the ongoing prisoner strikes that started on September 9. Though they cite difficulties in obtaining up-to-date information, it is believed that over 24,000 inmates in 12 states refused to work on the first day of the strike. Last weekend, corrections officers in Alabama joined the action, refusing to work their 12-hour evening shift. Prisoners cite wide-ranging reasons for the strikes including lack of fair pay for their work.

Gig News: 14,000 New York Uber & Lyft Drivers Sign ATU Union Cards

A major union is mounting a high-profile effort to represent gig economy workers in New York.  Crain’s reports that this week, the Amalgamated Transit Union Local 1181 delivered union cards signed by 14,000 New York Uber and Lyft drivers to New York’s Taxi and Limousine Commission.  The union also held a rally outside the TLC’s headquarters.  Gothamist and the New York Daily News have more.

The ATU’s campaign comes after an IBEW local filed a petition to represent some New York Uber drivers, the Teamsters announced an intent to form an Uber “drivers’ association” in California, and Seattle passed an ordinance allowing independent contractors to unionize.  Uber and Lyft drivers are presently classified as independent contractors without collective bargaining rights under the National Labor Relations Act, but the National Labor Relations Board could find that drivers are misclassified and are in fact employees.

Guest Post: What Hillary Needs to Say About Trade

Katherine V.W. Stone is the Arjay and Frances Miller Distinguished Professor of Law at UCLA School of Law.  She is the author of “From Widgets to Digits: Employment Regulation for the Changing Workplace” (Cambridge Univ. Press) and “Rethinking Workplace Regulation: Beyond the Standard Contract of Employment” (with Harry Arthurs). (Russell Sage Foundation 2013).  This post originally appeared in The Huffington Post.

Hillary delivered a masterful debate performance last night, and trumped Trump on many issues.  But on one important issue, most commentators give him the point – and that is trade.  Trump, and Sanders, have both made enormous political capital by blaming U.S. trade deals – particularly NAFTA –for the plight of American workers.  Hillary has not come up with a good response, and she needs to.

The problems of American workers are not simply due to increased global trade.  Most economists attribute the decline in the middle class to automation.  They contend that new digital technology favors workers with higher skills, so that workers who lack a college degree have been pushed out of the jobs that, in the past, provided middle class incomes.  Industrial factory jobs, clerical jobs, supermarket cashiers and many other jobs have disappeared due to “skill biased technological change.”  To be sure, trade exacerbates the problem because it enables firms to move the lowest skilled jobs to countries that have low labor standards.

However, to blame trade or/or technological change does not fully account for the decline in America’s middle class.  Their problem is not merely the disappearance of old jobs; it is that new jobs, and even the jobs remaining, have changed.  No longer do jobs come with the kind of security they had in the past.  In the past, having a job meant having an implicit promise of job security, as well as steady and rising wages, health benefits, vacations, sick leave, and the promise of a secure retirement.  These types of jobs have disappeared.  Instead, many firms have replaced regular workers with temporary workers or independent contractors.  And many regular workers have found that the security and benefits they had assumed was part of the job package have disappeared.

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Today’s News & Commentary — September 29, 2016

Yesterday, the House of Representatives passed H.R. 6094, a bill to delay President Obama’s overtime regulation by six months, by a vote of 246 to 177.  The regulation increases the salary threshold from $23,660 to $47,476 for workers.  Most workers earning less than this threshold will receive overtime pay for working more than 40 hours a week under the new rule.  The White House has issued a statement saying the President would veto the bill if it passes.  This effort to delay the rule follows a lawsuit filed by 21 states seeking to prevent the new rule from taking affect.

Hillary Clinton and Donald Trump sparred over trade policy in Monday’s presidential debate.  Yesterday, the New York Times sought to explain the turn of the political tide against trade in a piece entitled, “More Wealth, More Jobs, but Not for Everyone: What Fuels the Backlash on Trade.”  The article describes a negative reaction to global trade from workers in America and Europe.  While trade has resulted in lower prices for consumer goods, some workers have felt the negatives impacts of trade as they lost jobs.  One study estimated that between 1999 and 2011 the influx of Chinese goods eliminated almost one million factory jobs in the United States.  However, the article also notes that automation has eliminated jobs.  The Washington Post points out that this populist backlash against trade is occurring at the same time as the World Trade Organization is predicting the slowest growth in global trade since the financial crisis.  Economists are concerned that anti-trade sentiment could exacerbate the slowdown in international trade.

The Wall Street Journal published a series of articles reporting on findings from Women in the Workplace 2016, a study conducted by the McKinsey Foundation and LeanIn.org.  For the study, researchers gathered data from 132 companies and surveyed 34,000 employees.  The study found that the disparity in promotions between women and men starts early in employees’ careers.  Male employees are 30 percent more likely to be promoted at the entry level.  At the most senior levels, women hold just 19 percent of C-Suite positions.  The study also observes that while 78 percent of companies named gender diversity as one of their CEO’s primary goals, only 22 percent of employees say that this diversity is habitually gauged.

Today’s News & Commentary — September 28, 2016

With only 40 days to go until the presidential election, hundreds of tech companies have announced that employees will get a paid company holiday on November 8. While most of these companies are located in San Francisco, others have offices nationwide, including Spotify, About.com, and Wikipedia. Participating employers hope to reverse the recent downward trend in voting and possibly sway the federal government to announce a paid holiday as well. President Obama has previously endorsed the idea of a National Voting Holiday.

This week, Restaurant Opportunities Centers (ROC) United and the National Women’s Law Center released the results of an elucidating study called “Nightcare,” which explores the challenges faced by night-shift restaurant workers in securing childcare. Over the last three years, researchers interviewed 2,000 restaurant workers in New York City and conducted structured focus groups with others. One key finding is that nightcare is rarely available through licensed providers in workers’ neighborhoods, and workers must rely on informal networks during night shifts. In addition, the researchers found that, because many restaurant workers are tipped sub-minimum wage employees, they “vie for the highest earnings shifts at night and on weekends,” when childcare is least accessible—often forcing parents of young children to switch their occupations temporarily or permanently.

And, in international news, three prominent labor activists in China were sentenced to suspended prison terms this week. According to the New York Times, the activists have been “extremely effective at organizing workers to win higher pay and better conditions,” while China has been cracking down on labor organizing in the face of factories relocating to cheaper countries, such as Vietnam.

Today’s News & Commentary — September 27, 2016

Last night’s presidential debate between Hillary Clinton and Donald J. Trump featured discussions of jobs, labor and other topics related to labor and employment law.  CNN has a general summary, while Lexology published a summary for employers.  The Detroit Free Press reports on how how the United Auto Workers and Ford fact-checked Mr. Trump on jobs-related claims in real time via Twitter.

The U.S. Department of Labor is bringing suit against one major American employer, and conducting a comprehensive investigation into the practices of another.  First, in a move that will affect discussions of diversity in Silicon ValleyThe New York Times reports that the DOL “sued Palantir Technologies, a prominent data analytics start-up, claiming systemic discrimination against Asian job applicants.”  The DOL “claimed that Palantir’s hiring processes for software engineering positions placed Asians at a disadvantage.  Qualified Asian candidates were routinely eliminated during the résumé screening and telephone interview process, the government said.  The company also relied on an employee referral system that favored non-Asian candidates.”  Second, Reuters notes that “Secretary Thomas Perez on Monday pledged to conduct a ‘top-to-bottom’ review of all cases, complaints and other alleged violations that the department has received concerning Wells Fargo in recent years.”  NPR notes that some former Wells Fargo employees have brought a class action lawsuit, alleging they were punished for not breaking the law.  Wells Fargo is facing fallout from the “creation of millions of secret, unauthorized bank accounts.”

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Today’s News & Commentary — September 26, 2016

A recent op-ed in the Washington Examiner argued that federal lawmakers may be able to address the standstill in federal labor law simply by authorizing waivers which would allow states to opt out of the federal regime.  The waivers would open the door for states to experiment with policy which better addresses the challenges of modern business models and allow unions to take on new responsibilities to better serve their constituents.  In states that waived federal labor statutes, unions could legally unbundle their services and try forms of non-collective bargaining barred by the current law.  The waivers would be somewhat analogous to those available to states under the Social Security Act, which allow states to experiment with Medicaid and Medicare.  As with Social Security Act waivers, states would need to demonstrate that their policies would meet the underlying intentions of federal labor law, and proposals to waive federal law would be subject to public comment.

Last week, Hillary Clinton announced an agenda to create a more inclusive economy for people with disabilities, including programs to help people with autism and eliminating the “subminimum wage” still available for some people with disabilities.  The New York Times reports that people with disabilities may hold significant sway in the upcoming election, with one study projecting that 35 million people with disabilities will be eligible to vote in November.  In speaking of her proposal, Clinton said of people with disabilities, “[w]hether they can participate in our economy and lead rich, full lives that are as healthy and productive as possible is a reflection on us as a country.”

In further election news, the New York Times published an op-ed on Friday arguing that Donald Trump’s plan to “Save the Rust Belt” is doomed to fail.  Trump’s plan for winning votes in Midwestern Rust Belt states includes appealing to blue collar workers by deriding trade deals like NAFTA, which he believes are responsible for the outsourcing of many American jobs.  However, the Times argues, Trump  ignores that many blue collar jobs in states like Michigan have been “lost to automation, or to foreign manufacturers operating in the right-to-work South” and instead centers his policies around “economic nationalism.”

Some labor activists have expressed outrage at the AFL-CIO’s controversial decision last week to endorse construction of the Dakota Access pipeline, reports the Huffington Post.  In addition to environmental opposition to the pipeline, the Dakota Access project has been particularly controversial because of a contention that it will undermine tribal sovereignty of Native Americans, interfering with both the water supply and sacred land of the Standing Rock Sioux tribe.  According to the AFL-CIO, the pipeline’s construction will support 4,500 union jobs, albeit temporary ones.