Today’s News & Commentary—May 12, 2017

The New York Times Editorial Board calls a bill just passed by the House, “an invitation to wage theft.” The bill, called the “Working Families Flexibility Act,” lets employees choose paid time off instead of collecting time-and-a-half wages for overtime.  However, if employees choose paid time off, it is employers who get to choose when the time is taken, with only the caveat that it must be provided within a 13-month window.  The Editorial Board writes that if passed into law, this would “not only make employees vulnerable to wage delays, but to wage theft.” Under current laws, overtime pay must be added on to the paycheque corresponding to the time it was performed.

And on the topic of wage theft, the Economic Policy Institute has a new report out which finds that in the ten states with the biggest populations, 17% of low-wage workers are affected by wage theft, at an average of $3,300 per worker per year.  Overall, the study found 2.4 million workers impacted, and $8 billion stolen each year.  The ten states studied make up half the U.S. population.  Wage theft is having a severe impact on workers’ lives – over 21% of workers who were cheated out of wages were living in poverty, compared to 15% who would still be impoverished even if  paid their full wages.

Bloomberg reports that Republican legislators are drafting a bill that will once again make homecare workers exempt from the Fair Labor Standards Act.  A regulation announced under the Obama administration instructed employers that only homecare workers employed directly by clients were exempt from federal labor laws, while workers employed by agencies were covered. Agencies have been lobbying the Department of Labor to revoke that regulation.  If they fail to do so, Republican lawmakers say they will attempt to write the exemption explicitly into the law.

Also from Bloomberg, President Trump’s nominees to the NLRB – Marvin Kaplan and William Emanuel – are in the last stages before they will be ready for confirmation hearings.  Both have been submitted for FBI background checks and are on track to be nominated in June.  If confirmed, President Trump will have a Republican majority on the Board. According to Politico Emanuel is a management-side lawyer at the law firm Littler Mendelson and has filed amicus briefs defending class action waivers in employment contracts for his clients.  Kaplan is a lawyer for the Occupation Safety and Health Review Commission who previously worked as Republican counsel for the House Education and Workforce Committee.

Canada’s Chance to Get Marijuana Legalization Right for Workers

During prohibition, one of Al Capone’s liquor suppliers was a young Canadian named Samuel Bronfman. A Jewish immigrant whose family fled czarist Russia, Bronfman started his rum-running career as the owner of a small hotel and mail-order whiskey distributor. Then, prohibition hit. Instead of destroying Bronfman’s business, prohibition was a boon – he set up “export houses” along the border between Saskatchewan and North Dakota, partnering with criminal organizations like Capone’s to smuggle his product, and reaped the profits. But in 1922 Bronfman’s brother-in-law was killed, allegedly by gangsters, and Bronfman took it as a cue to leave the illegal trade. His family moved to Montreal and built up their legal business inside Canada, only re-opening their U.S. sales once prohibition ended. When Bronfman died in 1971, he was a multi-millionaire and the owner of Seagram Co. – the biggest producer and distributor of alcohol in the world. In a country humble about its own historical figures, Bronfman’s story is told with a rare romance and nostalgia. His is the legend of the plucky upstart, a self-made man who took opportunity as it came.

What made Bronfman’s story possible? In part, it was that no one held his past actions against him. In fact, he profited off of them, in terms of money, experience, and respect.

In 2018 Canada will become the second country in the world to end a different kind of prohibition—that of marijuana. This time around people who, like Bronfman, participated in the illegal trade of the substance will have a much harder time breaking into the legal market. That is because Canada’s proposed law lets the government prohibit anyone with a drug-related criminal record from taking a leadership role in the industry. With this policy, the Government of Canada is erecting barriers to employment for poor people and people of color, who are not necessarily more likely to sell or use marijuana, but are more likely to be arrested—and therefore develop a criminal record—for doing so.

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Today’s News & Commentary — April 28, 2017

Alexander Acosta will head up the Labor Department under President Trump after the Senate voted yesterday to approve his appointment. Acosta formerly served as a member of the National Labor Relations Board, U.S. attorney for the Southern District of Florida, and dean of the Florida International University College of Law in Miami.

A new study published in the American Journal of Public Health provides some surprising, and some not so surprising, findings about the state of family leave in the United States. The authors tracked trends in family leave between 1994-2015 and found that men are much more likely to be paid while on leave than women (66.1% vs. 47.5%), and that the number of men taking family leave has greatly increased —from 5800 per month to 22000 per month —while numbers among women have hardly changed. In less surprising news, the authors share that women on leave are disproportionately likely to married, have attended some college, and to be white.

American Airlines announced that they will be giving pilots and flight attendants a raise —an 8% increase for pilots and 5% for flight attendants —two years in advance of contract negotiations. Employees of the airline have long said that they are paid less than their counterparts at other airlines. Investors were not happy about the announcement, and the company’s stock was down 5.2% yesterday. An analyst at Citi wrote to clients, “This is frustrating. Labor is being paid first again. Shareholders get leftovers.”

In the United Kingdom the Bakers, Food and Allied Workers Union is also claiming a victory because McDonald’s will be offering their 150,000 UK workers the choice to move from zero-hours to fixed hours contracts. So far, about 20% of those offered have opted for the switch.

And one more bit of good news – workers in St. Louis will get to see their wages rise now that the Missouri Supreme Court declined to reconsider its ruling in a lawsuit over the city’s wage hike. Industry groups had sued, saying that the city should not be permitted to set its own minimum wage at a rate higher than the state’s. Now that the ordinance can go into effect, workers will see their hourly wage rise to $10, and again to $11 next year.

Finally, at Yale University four graduate teachers started a hunger strike this week, hoping to pressure the university into negotiations. Graduate teachers in eight academic departments at Yale voted to unionize at the end of February, but they say the university has been unreasonably slow to come to the table.

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 14, 2017

The New York Times reports that rules for immigrant detainees are likely  to change soon. Over the last 15 years, the federal government has instituted some protections for immigrant detainees including requirements to “[n]otify immigration officials if a detainee spends two weeks or longer in solitary confinement. Check on suicidal inmates every 15 minutes, and evaluate their mental health every day. Inform detainees, in languages they can understand, how to obtain medical care. [And] [i]n disciplinary hearings, provide a staff member who can advocate in English on the detainee’s behalf.” A leak from Department of Homeland security officials suggests that the office in charge of promulgating these regulations will be eliminated, and that among other changes, detainees will no longer be guaranteed translation services or access to healthcare professionals within 24 hours of a request.  The changes come in the wake of reports that President Trump is building a “deportation force”, and allegations of widespread forced labor in privately-owned immigrant detention facilities.

The government of Maine intends to create a work requirement for adults without dependents who want to access Medicaid. About 20% of the state’s population uses the program. In 2014, Maine created a work requirement for food stamps for the same population group, which saw their enrolment drop 90%.

The National Association for Home Care and Hospice, an industry group, will be lobbying the federal government to reverse a rule that extended FLSA coverage to homecare employees. In 2013, the Obama administration said that FLSA exemptions for “companionship services” and “in-home” caregivers only apply when caregivers work directly for a client. Caregivers who work for agencies are entitled to minimum wage and overtime pay, under the Obama-era rule. Industry groups unsuccessfully challenged the rule in court, and will now push the new labor secretary to reverse it.

A new book examines Harvard Business School’s influence on corporate culture, politics and economic inequality. A large number of Fortune 500 Executives hold degrees from HBS – three times more than from Wharton School, the next most popular school. The book’s author says in The New York Times“[W]hen students enter business school, they believe that the purpose of a corporation is to produce goods and services for the benefit of society…When they graduate…they believe that it is to maximize shareholder value.”

And in international news, starting this month in England companies employing over 250 people must report publicly on their gender pay gap. Companies will need to reveal pay disparity between men and women’s salaries, as well as the number of men and women who received bonuses, and any disparities in the average size of bonuses. The government has stated that the average pay gap in English workplaces is 18.1%.


Today’s News and Commentary — March 31, 2017

Department of Labor officials told the The Guardian that it is getting harder to conduct workplace investigations because undocumented workers are refusing to cooperate with investigators. According to the report, the current government’s policies have stoked such fear of deportation among undocumented workers that in some instances workers are “declining to accept back wages owed to them and running away from staff who show up at their workplaces.” As a result, it is becoming harder to learn about workplace violations, and to enforce proper standards. The Department of Homeland Security and Immigration and Customs Enforcement have a Memorandum of Understanding, still in place, stating that they will not interfere in Department of Labor investigations.

The Wall Street Journal reports on worker shortages facing the construction and farm industries as a result of “demographic trends coupled with a skills mismatch.” The Bureau of Labor Statistics found that the number of unfilled construction jobs has almost doubled in the last five years with around 150,000 jobs currently unfilled. Farmers also report vast labor shortages that resulted in tens of millions of dollars of crops rotting in their fields before being cultivated. At the root of the problem, according to the article, is an aging workforce – an average construction equipment operator is 46 years old – reduced visas for guest workers, delays in visa processing, and a shrinking undocumented workforce.

And a new group on Capitol Hill, the Blue Bollar Caucus, is working to win back blue-collar voters in traditionally Democratic states. Labor leaders met with Caucus co-chairs, Rep. Marc Veasey of Texas and Rep. Brendan Boyle of Pennsylvania, for a listening session this week.

In international news – a small city council in Canada is taking a novel approach to the problem of underpaid temporary workers, by voting to stop using temporary staffing agencies altogether. A recent report from the province of Ontario, where the City of Brantford is located, found that 75% of temp agencies inspected were violating provincial labor laws.


Today’s News & Commentary — March 17, 2017

President Trump released his budget proposal yesterday and it includes deep cuts to almost every area of discretionary spending. Of seventeen spending categories only Defense, Homeland Security and Veterans Affairs have proposed increases. The budget proposal slashes funding to the Environmental Protection Agency by 31%, to the Department of Agriculture by 21%, and completely eliminates $3 billion dollars in grants for community programming that includes Meals on Wheels and other assistance to low-income communities.

President Trump’s budget proposal also includes a recommended 21%, or $2.5 billion, cut to the Department of Labor. The Washington Post reports that some of the programs proposed for elimination include the Senior Community Service Employment Program which helps people over the age of 55 living with low-incomes to find work, Job Corps which provides training to low-income youth, and technical assistance grants that help employers accommodate workers with disabilities. One program that the budget proposal recommends expanding is the Reemployment and Eligibility Assessment program that helps verify eligibility for unemployment benefits and helps “unemployed people find jobs more quickly.”

Sharon Block, Executive Director of the Labor and Worklife Program at Harvard Law School, outlines more of the proposal’s potential impacts on workers in Democracy. She writes,For American workers who voted for President Trump because he ran on a promise to finally stand up for them, the outlines of the FY 2018 budget may come as a rather big shock.” 

The Department of Agriculture reported this week that the Supplemental Nutrition Assistance Program (SNAP), formerly the Food Stamps Program, is increasingly being used by “working poor” families. In 1989 19.6% of households using Food Stamps had one or more employed member. in 2015 nearly 31.8% of households on SNAP assistance had one or more members working. In other words, more families receiving SNAP benefits are working, but making incomes so low that their earnings fail to put them over the threshold for assistance.

And JD Supra has a helpful debrief of a recent 11th Circuit case that held that Title VII can be applied to workplace discrimination based on gender-stereotyping, but not to workplace discrimination based on sexual orientation. While the EEOC extended Title VII protection to sexual orientation discrimination in their 2015 Baldwin v. Foxx ruling (stating that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII”), no federal appeals court has yet followed suit. Both the 7th and 2nd Circuits are expected to issue decisions on this question soon.