Today’s News & Commentary — April 19, 2017

The New York Times weighs in on the effect that Trump’s “Hire American” order may have on tech worker visas.  According to the Times, the order “represents a small win for bigger tech companies,” but may hurt smaller technology companies that “cannot afford to pay high salaries and are already struggling to attract talent.”  Senator Schumer, however, had a different take: “This does nothing,” he said. “Like all the other executive orders, it’s just words — he’s calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.”

Is O’Reilly no longer a factor?  That’s the question being asked at Politico, which cites the Wall Street Journal’s report that Fox News “is preparing to cut ties with . . . O’Reilly.”  Since an April 1 New York Times story broke the news that Fox had paid out about $13 million to settle sexual harassment allegations against O’Reilly, pressure has been mounting on Fox to fire its biggest star.

As the New York Times puts it, “[t]he threat of a Hollywood strike is getting real.” Members of the Writers Guild of America will begin voting today on whether to authorize a walkout.  If members approve a strike, it could have “serious implications.” When writers went on strike a decade ago, it cost the Los Angeles economy an estimated $2.5 billion, affecting everyone from the writers themselves to caterers, limo drivers, and florists.  As for how a strike would affect viewers, the Times explains that late-night comedy shows would screen reruns, some scripted series would be delayed, and daytime soap operas would probably end (unless producers bring in non-union writers).  A strike might also speed the shift from network viewing to Netflix and Amazon.

Weekend News & Commentary—April 15-16, 2017

Yesterday, in dozens of cities across the U.S., tens of thousands of protestors took to the streets to demand that Trump release his tax returns.  Reuters explains that organizers of the “Tax March” wanted to draw attention to Trump’s refusal to release his tax returns.  The marches were planned for April 15 because it is the traditional filing deadline for U.S. federal tax returns (this year the filing date was pushed back two days).

Politico reports that the “clock is ticking” for expanding the number of available H-2B visas.  The H-2B visa program permits business to hire temporary, non-agricultural foreign workers, with a cap of 66,000 visas per year.  The 2015 spending bill exempted returning workers from the cap, and business leaders are pushing for Congress to do the same in 2017.  Although a House appropriations bill for the fiscal year 2017 already includes the exemption, business leaders are lobbying the Senate to do the same by April 28, the date by which Congress needs to pass a spending bill to keep the government functioning.

On Thursday, U.S. District Judge for the District of Massachusetts Leo T. Sorokin presided over a two-hour hearing regarding two City Hall aides charged with extortion for “allegedly threatening to withhold permits for the Boston Calling festival in September 2014 unless organizers hired union workers.”  According to the Boston Globe, a prosecutor in the U.S. Attorney’s Office asserted that the aides thought they were advancing Mayor Walsh’s agenda.  Attorneys for the defense countered that the aides acted as city workers seeking jobs for constituents, that they had the right to negotiate the use of City Hall Plaza, and that the prosecutors “have failed to show that the defendants received anything of value for allegedly urging the labor union jobs.”  As Attorney Thomas Kiley argued, “A violation of the National Labor Relations Act is not the same as [extortion].”

Today’s News & Commentary — March 22, 2017

According to the New York Times, Portland, Maine will try a new tactic to deal with panhandlers: hire them. After Portland’s previous efforts — which included outlawing begging and bulldozing a strip in the middle of a road that had proved popular with beggars — were struck down by the First Circuit as infringing on people’s First Amendment rights and proved ineffective, respectively, city officials adopted a new tactic.  In April, Portland will hire a few panhandlers a day, pay them the city’s minimum wage of $10.68 an hour, and assign them to clean parks and public spaces. Several other cities have already successfully adopted a similar approach, and Portland is following their lead.  A year and a half ago, for example, Albuquerque instituted a jobs program that pays $9 an hour.  The program has created 1,750 jobs and led to the removal of over 60 tons of litter.  The jobs program in Portland will function similarly to the one in Albuquerque.

Alexander Acosta appears before the Senate HELP Committee today.  Politico weighs in on the issues expected to arise: politicized hiring at the DOJ, voting rights, Acosta’s role in Jeffrey Epstein’s plea deal, and DOL regulations governing retirement advice and overtime eligibility.

CNBC and Business Insider report that Goldman Sachs will move jobs out of London and bulk up its European presence by “hundreds of people” as it executes its Brexit contingency plans.  Richard Gnodde, the CEO of Goldman Sachs International, explained that the plans will “be a combination of things. We’ll hire people inside of Europe itself and there will be some movement.”  Goldman plans to invest in infrastructure, systems, and technology, and the movement away from London will “not necessarily result in a net reduction of workers in the U.K.”

Today’s News & Commentary — March 8, 2017

Today is International Women’s Day, and many women around the country are participating in a strike that has been billed as “A Day Without a Woman.”  The action is intended to highlight the economic importance and impact of women on society, and it was organized following the Women’s March on January 21.  CNN reports that American women “aren’t the only ones taking to the streets.”  In Ireland, women and pro-choice activists are expected to rally across the country in a day of action dubbed “Strike 4 Repeal,”  aimed at repealing Ireland’s eighth amendment, which places the right to life of an unborn child on equal footing with the right to life of the mother.  In Australia, thousands rallied in Melbourne, demanding economic justice and reproductive rights for women around the world.  In the Philippines, women’s rights activists marched to the embassy in Manila, carrying signs calling for employment and discrimination reforms. Protests also took place in Rome and Moscow.

Politico weighs in on Trump’s revised executive order, noting that attention “may now shift to the refugee-related provisions” in the order.  The new order exempts valid visa holders and eliminates the provision that called for the U.S. to prioritize religious minorities (i.e. non-Muslims) in refugee admissions, but left in place a 120-day suspension of the refugee resettlement program (although Syrian refugees are now barred only temporarily, whereas before they were barred indefinitely).

At the Atlantic, Alana Semuels interviews David Weil, an Obama appointee who directed the Department of Labor’s wage-and-hour division, about the future of DOL under Trump.  One of Weil’s big worries concerns “the overlay of immigration policies on…the labor market.”  As Weil put it, “There’s a lot of writing on the wall that deeply, deeply concerns me.”

In international news, Argentina’s main labor union led a mass picket on Tuesday to protest job cuts and pay raises.  According to Reuters, the picket attracted tens of thousands of demonstrators and took place in the midst of a two-day teachers’ strike.  The protests also come at a bad time for Argentinian President Mauricio Macri: key congressional elections are slated to take place in October, and Macri needs his political coalition to do well “in order for him to keep pushing his economic reforms through Congress and position himself for re-election in 2019.”

Today’s News & Commentary — February 22, 2017

The influx of refugees into upstate New York has helped revitalize previously-suffering communities.  As the New York Times reports, “[t]he impact has been both low-budget and high-tech”: refugees have provided local businesses with inexpensive, willing labor; foreign-born students have enrolled — paying tuition and fees — at upstate schools; and street-level entrepreneurs have opened new shops.  Somewhat ironically, the cities’ struggles made them popular locations to settle refugees.  Because people left, housing prices dropped, and refugees came in and were willing “to put in the sweat equity that a lot of people weren’t anymore.”  That, in turn, “put properties back on the tax rolls.”

The Wall Street Journal also weighs in on the benefits that refugees bring to the economy. In addition to providing a key source of labor, many refugees “bring a resilience and level of expertise that makes them well-suited for learning on the job.”  According to a study from the Migration Policy Institute, roughly 28% of the refugees over the age of 25 who settle in the U.S. arrive with at least a bachelor’s degree.  The Wall Street Journal notes that skills from abroad may not always translate, and some employers have found that refugees need help with translation services, resume writing, American-style management techniques, and tips for navigating their new lives.  Despite potential training challenges, however, refugees can provide companies with  “a strong competitive advantage,” enabling them to better understand, for example, the needs of clients in key markets across Asia, Africa, and the Middle East.

Chief Judge Patricia Elaine Campbell-Smith of the U.S. Court of Federal Claims recently held that the government had violated the FLSA by failing to examine whether it was required to pay employees who continued to work during the partial government shutdown in 2013.  That those workers were later paid for their time was irrelevant. The Washington Post explains that the decision entitles workers to minimum wage pay for the hours they worked between October 1 and October 5, 2013.  Judge Campbell-Smith ordered the government and the plaintiffs to calculate amounts due and report back by April 7.

The New York Times editorial board posits that blaming robots for job loss, “while not as dangerous as protectionism and xenophobia, is also a distraction from real problems and real solutions.”  The Times points out that if automation were rapidly accelerating, labor productivity and capital investment would be increasing as well.  But the data shows the opposite: in the 2000s, labor productivity and capital investment decelerated.  The problem lies instead with “politicians, who have failed for decades to support policies that let workers share the wealth from technology-led growth.”

Today’s News & Commentary — February 8, 2016

Yesterday, Republican lawmakers “proposed sweeping changes to Iowa’s collective bargaining laws” in the form of House Study Bill 84 and Senate File 213.  As the Des Moines Register explains, the new bills would limit mandatory negotiations for most public-sector union workers (public safety workers such as firefighters and police officers are exempted) to base wages only; negotiations over issues like health insurance and overtime would be prohibited.  The bills would also require unions to go through a certification process before each new contract negotiation.  Additional coverage is available at the New Republic, which also provides a brief historical overview of collective bargaining law in Iowa.

The New York Times reports that New York is attempting to revive the once-thriving, now-troubled garment industry.  City officials have increased efforts to create a new garment industry in Sunset Park, including a $115-million renovation of the city-owned Brooklyn Army Terminal, which will expand manufacturing space by 500,000 feet.  They have also partnered with the Council of Fashion Designers of America in order to assist companies with modernizing their manufacturing processes and workplaces.

Can Andy Puzder survive?  That’s the question Politico asks, noting that Puzder has faced allegations of beating his wife, began his career working for “one of the most notorious mob lawyers in the country,” and just admitted that he employed an undocumented immigrant as his house cleaner and didn’t pay taxes on her employment.  Despite these scandals, however, Puzder is “somehow . . . still standing.”

In other news, the New York Times observes that the appeals panel that heard oral argument yesterday in State of Washington v. Donald Trump “appear[ed] skeptical of Trump’s travel ban.”  The Times also notes that nearly 130 companies, most of them from the tech industry, filed an amicus brief in support of Washington State.

 

The Supreme Court Vacancy and Labor: Neil Gorsuch

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Neil Gorsuch currently serves as a judge on the United States Court of Appeals for the 10th Circuit. He was appointed by President George W. Bush on May 10, 2006 and confirmed just over two months later. As SCOTUSblog and numerous other outlets have pointed out, Judge Gorsuch may be “the most natural successor” to Justice Scalia, “both in terms of his judicial style and his substantive approach.”

Last August, Judge Gorsuch “made real waves in the normally sleepy world of administrative law” by advocating the end of the doctrine of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). Writing a separate concurrence to his own opinion, Judge Gorsuch opined, “We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change – except perhaps the most important things.” Id.

The following provides an overview of Judge Gorsuch’s opinions in cases involving the NLRB and employment discrimination.

Continue reading