Today’s News & Commentary — April 27, 2017

Politico reports that the Senate will likely vote to confirm President Donald Trump’s nominee for labor secretary, Alexander Acosta, today.  President Trump also appointed current National Labor Relations Board member Philip A.  Miscimarra to serve as chairman of the National Labor Relations Board.  Miscimarra has been serving as acting chairman of the Board beginning in January 23, 2017.  The National Law Review suggests that being named to this position “while largely administrative, may bode well for Miscimarra’s renomination to a new term.”  His term expires in December of 2017.

Yesterday, President Donald Trump assured Mexican President Enrique Peña Nieto and Canadian Prime Minister Justin Trudeau that he would seek to renegotiate NAFTA rather than exit the agreement right away.  The White House had indicated earlier on Wednesday that President Trump would sign an executive order officially withdrawing from the trade agreement.  The New York Times suggested the initial White House announcement on withdrawal was “an example of Mr. Trump’s deal-making in real time.”  Under NAFTA Article 2205, the United States must provide six months advanced warning before terminating the trade agreement.  It remains unclear whether President Trump might still sign an executive order initiating withdrawal from the agreement at some point in order to begin the notification process and gain leverage in negotiations.  Read more here.

In other news from the White House, President Donald Trump vowed to appeal an order by Judge William H. Orrick of the Federal District Court for the Northern District of California.  The order temporarily restrains the Administration from withholding federal funds from sanctuary cities.  Although the federal government has yet to flesh-out the definition of a sanctuary city, the term is generally defined as a jurisdiction that does not fully cooperate with efforts by the federal government to enforce its immigration policy.  Read more about the decision here.


Are Lyft and Pepsi Playing the Same Game?

Recently, following swift and widespread backlash, Pepsi pulled an advertisement that was accused of co-opting imagery from Black Lives Matter protests and other social movements. The advertisement’s storyline centered on model Kendall Jenner abandoning a photo shoot to join a parade of ethnically diverse models carrying ambiguous posters painted with peace signs, love written backward in Arabic, and vague invitations to “join the conversation.” At the end of the commercial Jenner, a white woman, pushes past the protesters-of-color who invited her to the demonstration, and offers a police officer a Pepsi. The officer opens the can and the crowd erupts in triumphant hugging. Responses to the ad included a tweet from Martin Luther King’s daughter that read “If only Daddy would have known about the power of #Pepsi.” After initially defending the commercial, Pepsi issued a statement saying, “Clearly, we missed the mark, and we apologize. We did not intend to make light of any serious issue.”

Pepsi’s advertisement is just the most recent in a series of corporate attempts to capitalize on the current political moment. While Pepsi did “miss the mark,” other companies have better managed to brand themselves members of the #Resistance.

Lyft has arguably done this most successfully. After years of competing with Uber, and lagging significantly behind in both valuation ($5.5 billion to Uber’s $60 billion), and market share (20% to Uber’s 80%), Lyft has profited off of recent political events, and Uber’s missteps. Lyft’s first move came in response to the #deleteUber campaign which was sparked by Uber’s actions during the airport protests against President Trump’s first executive order on immigration. About 200,000 people deleted Uber following the protests. Sensing an opportunity to distinguish themselves, Lyft made a $1 million donation to the ACLU, the very organization who had come to symbolize opposition to Trump’s executive order. In the wake of #deleteUber, Lyft downloads increased by 40% and they gained around 5% of Uber’s market share.

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Today’s News & Commentary — April 26, 2017

This morning Senators Bernie Sanders and Patty Murray along with 21 Democratic members of Congress came together to support a $15 minimum wage. The Raise the Wage Act would gradually increase the federal minimum wage to $15 an hour, jumping to $9.20 an hour upon passage and adding around dollar a year until it reaches $15 in 2024. The minimum wage would rise automatically after that with the country’s median wages. The bill as proposed would also gradually do away with the tipped minimum wage.

According to POLITICO, Minneapolis attorney Doug Seaton, described as an an anti-union executive, is on President Trump’s shortlist to fill one of the two empty seats on the NLRB. Reports say none of the three candidates is pro-union, but Seaton — who calls himself a “lawyer for employers” — stands apart.

The New York Times reported that eleven current and former Fox News employees filed a class-action lawsuit against the network, accusing it of “abhorrent, intolerable, unlawful and hostile racial discrimination.” The lawsuits claim that Fox News employees repeatedly complained about racial discrimination to current network executives but that no action was taken and that the discriminatory behavior continued. This lawsuit comes on the heels of a spate of employee complaints of sexual harassment and the public ousting of Bill O’Reilly.

The New York Times published a January study from the Department of Energy showing that the clean energy industry employed more Americans than the coal industry last year. In 2016, 1.9 million Americans were employed in electric power jobs, 373,000 in solar energy, and only 160,000 in coal.

Today’s News & Commentary — April 25, 2017

The Supreme Court will soon be presented with the opportunity to decide whether unions can constitutionally charge non-members “fair share” fees.  According to Bloomberg BNA, “the National Right to Work Legal Defense Foundation intends by the end of May to file a petition asking the high court to review a Seventh Circuit decision dismissing a lawsuit by two Illinois government workers who challenged the fees on First Amendment grounds.”  The Supreme Court heard a similar challenge in 2016, Friedrichs v. California Teachers Association, but ultimately ruled 4-4 following the death of Justice Scalia, thus affirming a lower court decision finding that public-sector unions may continue to collect “fair share” fees from nonmembers.  The Seventh Circuit similarly upheld such fees in the case at issue now.

Using colorful language about a boss does not deprive a worker of the protections of the National Labor Relations Act, according to the Second Circuit.  Consumerist reports that the Second Circuit found that the operator of restaurants at New York’s Chelsea Piers illegally terminated a worker in retaliation for engaging in protected activity when, two days before a unionization vote, the worker posted a colorful Facebook post about his boss in urging support for unionization.  The Second Circuit concluded that “the NLRB could reasonably determine that the server’s “outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”

America’s male-dominated industries want to diversity.  Per the Chicago Tribune, the “Iron Workers union this month leaped to the cutting edge of the effort, becoming the first building trades union to offer up to eight months of paid maternity leave to pregnant women and new moms” despite only 2 percent of union members being women.  The union and other traditionally male-dominated employers are driven to recruit women by the aging of baby boomers, a decline in enrollment in vocational education, and other factors.

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The NFL Combine: Does the 40-Yard Dash Violate the ADA?

The 2017 NFL Draft begins on April 27, when the nation’s most promising college football players will be holding their breath, waiting for their names to be called out (or not).  Their draft status will depend on an unknowable combination of factors, including their college career, their future potential, and last but not least, their performance at the NFL Scouting Combine.  This year’s Combine was held last month, with over 300 players — the top prospects in their draft class — descending on Indianapolis to participate in the most grueling job interview they will ever face.

Whether the Combine is a reliable indicator of NFL talent is a hotly contested topic.  The event has been criticized as “overrated,” “a waste of time,” and a “ridiculous meat market.”  And if we take a close look at its process, we might also add another criticism to that list: a potential violation of federal law.  By subjecting prospects to tests that are invasive and insufficiently job-related, the NFL Combine could be running afoul of the Americans with Disabilities Act.

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Today’s News & Commentary — April 24, 2017

The National Labor Relations Board has recommended that a new election be held for Harvard graduate students who sought to unionize last November, according to the Harvard Crimson.  The Board found that Harvard had not complied with requirements to provide a list of eligible voters, and that they may need to hold a new election if the results of a new vote count are not in favor of unionization.  Harvard maintains that the election held in November was fair.  The Board’s recommendation will be reviewed by Regional Director John J. Walsh Jr., who will issue a final decision on the matter.

Although North Carolina has been a right-to-work state since 1947, voters may soon be deciding on whether the policy belongs in the State constitution.  A new bill, which recently passed North Carolina’s House Judiciary Committee, would require a voter referendum on the issue in November, 2018, according to the News & Observer.  North Carolina is one of 28 right-to-work states.

The Metropolitan Washington Airports Authority voted recently to require all companies that do business at Reagan National and Dulles International airports to pay contract workers at least $11.55 an hour starting next year.  The decision results from a two-year push to increase wages at the airports as part of the nationwide “Fight For $15,” and both SEIU and Unite Here helped negotiate for the contract workers.  The increase will help 4,500 workers at the airports who are responsible for cleaning terminals and plane cabins, moving bags, serving meals, and helping people with disabilities, reports the Washington Post.

A New York Times piece looks into the lives of workers on H-1B visas, permits aimed at highly-skilled workers which President Trump has recently called for new restrictions on.  One estimate shows that one in eight tech workers has an H1-B visa, and they account for 15% of the workforce at Facebook and Qualcomm.

The Bar Application: An Unintended Bar to Student Care

For many students, attending law school is a stressful and exhausting experience.  It’s no surprise that 96 percent of law students report experiencing stress – compared to 70 percent of medical school students.  The Dave Nee Foundation found that in the first semester of law school, rates of depression among law students increase from just over 8 percent to just over 27 percent.  During the final year of law school, more than 40 percent of students struggle with depression.  These elevated rates of stress and depression are not confined to law school – practicing attorneys also suffer from higher rates of stress, depression, and even suicide than the general population.

In light of these facts, school administrations, advocates and other concerned parties are dedicating the time and resources to alleviate the barriers students encounter to seeking mental health support.  The American Bar Association (ABA) created a Mental Health Awareness day to draw more attention to the problem, and schools across the country are increasing access to mental health resources.

While many schools offer mental health counseling and resources, many students still face barriers to access.  For example, at Georgetown Law and Yale Law, students reported institutional impediments like long wait times and student health plan limits on therapy sessions.  For others, the barrier is the potential risk of facing the stigma associated with mental health challenges.

In a 2014 report by Yale Law School, 30% of Yale Law students who said they had considered, but did not seek treatment for mental health problems, cited “fear of disclosure risk for the bar exam” as a reason why.  As a reported 40 states ask some form of a mental health question on the bar application, many students understandably decide to forgo mental health treatment, lest it have negative implications for bar admittance.

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