Today’s News & Commentary — February 16, 2017

Employees at Boeing’s South Carolina plant voted against unionization yesterday.  The company stated that 74 percent of employees who cast votes in the election voted against the union.  The International Association of Machinists’ lead organizer, Mike Evans, released a Facebook video statement saying that the workers had determined that “at this time they don’t need representation.”  The New York Times situated this loss for the machinists in the context of other union losses in the South.  Read more here.

As reported yesterday at OnLaborAndrew Puzder has withdrawn his nomination to be the next secretary of labor.  In the aftermath, commentators are wondering what this means and who will be nominated in Puzder’s place.  Benjamin Wallace-Wells at the New Yorker suggests that Andrew Puzder’s nomination made Donald Trump’s populism “less credible” by “[giving] Democratic populists not just villainy but a villain.”  At Slate, Jordan Weissmann cautions Democrats that their victory may not be much cause for celebration.  He states, “[i]n the end, Puzder’s nomination seems to have been sunk by the combined weight of his flaws, but it’s hard to shake the sense that immigration was the decisive issue.”  Weissmann also notes that the next nominee will likely be as bad as Puzder on labor rights and worse on immigration issues.  In particular, he points to Peter Kirsanow as a likely contender.  Yesterday, White House press secretary Sean Spicer refused to discuss who would replace Puzder.

The Washington Post reports that immigrant workers in D.C. and around the country are planning “A Day without Immigrants” boycott to demonstrate the importance of immigrants in the American economy and protest President Donald Trump’s policies in this area.  Immigrants are being called on “not to attend work, open their businesses, spend money or even send their children to school.”  Trump’s recent immigration actions include an executive order released on January 25, 2017.  The order greatly increases the categories of immigrants deemed a deportation priority.  Following this executive order, there have been reports of Immigration and Customs Enforcement raids and arrests of more than 600 people across the country.  Yesterday, the New York Times highlighted the detention of Daniel Ramirez Medina, who received a work visa through the Deferred Action for Childhood Arrivals (DACA).  Medina’s detention has inflamed fears among immigrants and immigrant rights activists because President Trump has given mixed signals regarding the future of the DACA program.  While Medina has yet to be released, other DACA recipients were released shortly after their initial arrests.  Read more here.

In international news, the South African government is exploring instituting a minimum wage. Last year, a governmental panel studying the issue suggested a minimum wage of approximately $1.50 an hour, which would result in earnings of roughly $250 a month.  While this sum seems small, it is close to the median income in South Africa, a country with an unemployment rate of 27 percent.  Proponents of the measure argue that the minimum wage is a much needed step to reduce income inequality while opponents fear that it will create job loss.  Read more here.

Supreme Court Postpones Hearing Class Action Waiver Cases

This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

As reported by Law360, the Supreme Court has informed the parties in Murphy Oil, Ernst & Young, and Epic Systems that the Court will postpone oral argument until next term, which begins in October 2017.  The Court granted certiorari in January.  Law360 points out that Judge Neil Gorsuch will likely be confirmed to the Court by this fall, assuming that Senate Democrats do not decline to confirm his nomination.  Some followers of the Court believed the justices would be evenly split on the enforceability of class action waivers in employment contracts, and Gorsuch could provide the tie-breaking vote.  A separate Law360 piece analyzing Gorsuch’s previous arbitration agreement and class action decisions suggested that “employers may have reason to be optimistic” in Murphy Oil with Gorsuch on the Court.

NLRB General Counsel Directs Regions to Wait on Class Arbitration Cases Until Murphy Oil Is Decided

This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

As reported in JD Supra, the General Counsel’s office of the National Labor Relations Board has issued a memorandum to regional offices in response to the Supreme Court’s grant of certiorari in Murphy Oil, Ernst & Young, and Epic Systems.  The instructions state that “in cases alleging that the employer is either maintaining and/or enforcing an agreement prohibited by Murphy Oil, Regions, after determining the case has merit, are directed to propose that the parties enter informal settlement agreements conditioned on the Agency prevailing before the Supreme Court in Murphy/Epic/Ernst & Young.”  In cases with multiple allegations at issue, the General Counsel’s office has directed the regional offices to enter into this type of informal settlement, but if other meritorious allegations cannot be settled, the regional officers are directed to move the litigation forward.  In instances in which the mandatory arbitration agreement contains an opt in/opt out clause or the agreement can be distinguished from the type of agreement in Murphy Oil, the General Counsel’s office has directed the regional offices to hold these cases in abeyance.

Today’s News & Commentary — February 2, 2017

The Washington Post reports that the hold up in scheduling Labor Secretary nominee Andrew Puzder’s Senate hearing is due to the nominee’s difficulties in separating from CKE Restaurants.  Puzder wanted to transfer his CKE holdings to a blind trust, but the Office of Government Ethics has told him that he must divest his stake in the company to satisfy ethics requirements.  Because CKE is not publicly traded, divestment can be more difficult.  In a statement to the Associated Press, Puzder reaffirmed his commitment to the post.

New York City Mayor Bill de Blasio and the Patrolmen’s Benevolent Association, the largest union representing the city’s police officers, announced that they had reached a contract agreement.  The deal includes a wage increase of 9.3 percent over five years and a one-time 2.25 percent raise or “neighborhood policing differential.”  The city claims that the raises for officers will be counterbalanced by reductions in pay for new officers.  Additionally, under the proposed agreement, all officers below the rank of sergeant will be required to wear body cameras by the end of 2019.  The five-year contract will be retroactive starting in 2012 but must be ratified by the union’s members before taking effect.  The Wall Street Journal has suggested that Mayor de Blasio’s negotiating position was impacted by his upcoming reelection campaign and public protest actions by the city’s policemen.  Read more here.

The Washington Post has published a series of articles in the past few days exploring federal employees’ resistance to the Trump administration.  The Post reported that some federal workers have been examining ways to impede the execution of Trump’s policy agenda and have been in contact with former Obama administration officials for advice on how to handle orders the employees deem improper.  While some employee opposition has been overt, such as a dissent memo signed by numerous foreign service officers and former Acting Attorney General Sally Yates’s refusal to implement Trump’s refugee ban, other employees have been looking for quieter ways to thwart the new administration, such as slowing down processes or missing deadlines.  These more covert methods of resistance can go unnoticed.  However, the Post notes that federal employees who refuse to act can face significant repercussions.  Debra D’Agostino, a partner at the Federal Practice Group, warned that “[u]nder current MSPB [Merit Systems Protection Board] case law, the employee must obey an order, and then challenge its validity, except in ‘extreme or unusual circumstances’ in which the employee would be placed in a clear danger or which would cause irreparable harm to the employee, or, presumably, the safety of the public.”  Moreover, while federal employees are currently shielded by whistleblower protections if they are asked to violate the law, these protections do not protect them if they are asked to contravene a regulation.  Some observers have expressed concern over what they see as Trump’s hostility toward dissent within the federal government.  Informal Trump advisor, Newt Gingrich, has suggested that President Trump may try and push for changes that make it easier to fire federal workers who impede the execution of his agenda.  The American Civil Liberties Union has pledged to work to defend dissenters and whistleblowers within the federal government. Continue reading

Today’s News & Commentary — January 19, 2017

Yesterday, the Senate held a confirmation hearing on Wilbur Ross, President-elect Trump’s nominee for commerce secretary.  At the hearing, Ross continued to show support for a renegotiation of NAFTA, a frequent topic for Trump during the campaign.  Ross also indicated that China’s trade practices would be a target of trade enforcement actions under the next president.  Read more about the hearing here and access a video of the confirmation hearing here.

President-elect Trump’s actions aimed at keeping jobs in the United States have continued to garner news coverage.  The New York Times compiled a list of company announcements regarding retention of jobs in the U.S., organizing the announcements into three categories: companies which “announced plans after Trump singled them out,” companies which “held up job plans after criticism from Trump,” and companies which “have kept plans despite criticism from Trump.”  For the full list, read more here.

The Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor filed actions alleging discriminatory employment practices at JPMorgan Chase and Oracle.  The Department filed a complaint against JPMorgan with an administrative law judge in New York alleging that at least 93 women employed at the company were paid less than men in similar positions.  In the action against Oracle, OFCCP alleged both hiring and pay discrimination.  The complaint asserts that Oracle paid white men more than similarly situated employees and Oracle impermissibly favored Asian men for certain technical positions over others applying for those jobs.  USA Today situates this enforcement action against Oracle in the context of the Department’s “more aggressive” enforcement of labor laws against tech companies in Silicon Valley in recent months.  As evidence of the Department’s heightened focus on Silicon Valley, the article points to recent actions initiated by the Department of Labor against Google and Palantir.

Today’s News and Commentary — January 5, 2017

At Vox, Matthew Yglesias points out that President-Elect Trump has appointed protectionists to key positions in his administration.  On Tuesday, Trump announced his intention to name Robert Lighthizer to the post of U.S. trade representative (USTR).  Lighthizer, a former deputy USTR in the Reagan Administration and a practicing trade lawyer, has been a critic of recent free trade policies.  In addition to the appointment of Lighthizer, Trump’s appointment of Wilbur Ross to the post of commerce secretary and Peter Navarro to run the newly created National Trade Council signals a drastic shift in trade policy.  Under the Tariff Act of 1930, the Commerce Department has wide discretion to impose tariffs on countries the agency believes are “dumping.”  Yglesias contends that Navarro’s position will allow the Commerce Department to avoid the interagency process in implementing its protectionist trade agenda.  The interagency process has traditionally been coordinated by the National Economic Council.  Trump appointed former Goldman Sachs president Gary Cohn, who has historically been pro-trade, to head the National Economic Council.

Yesterday, the New York Times published a piece entitled “Why Men Don’t Want the Jobs Mostly Done by Women.”  While jobs performed mainly by men have been among those with the steepest job loss, jobs held mainly by women are among the fastest growing professions.  However, men have been hesitant to work these “pink collar jobs.”  Although these jobs offer relatively more job security than male-dominated work, these “pink collar jobs” pay less, and men in these professions report feeling stigmatized.  Read more here.

Yesterday, the Washington Post reported on some of the final actions of the Obama Administration’s Department of Labor in its enforcement of workplace laws against federal contractors.  The Department moved to debar Restaurant Associates.  A debarment could affect the company’s ability to receive new federal contracts for up to three years.  In July, the Department of Labor announced an agreement with Restaurant Associates and its subcontractor Personnel Plus.  The agreement required the companies to provide $1 million to 674 workers who were unlawfully denied wages.  In late December, the Department of Labor also announced a settlement agreement with federal contractor Hormel Foods.  The company agreed to pay $550,000 in backpay to 403 prospective women employees and hire 37 women as part of a settlement obtained as a result of gender discrimination in hiring.

The Wall Street Journal published a piece this week on the ways in which apps are being used by workers to share information about their workplaces.  The piece looked at Shyft, an app that connects employees to swap shifts.  The piece also highlighted apps designed to facilitate collective action and report violations of workplace laws.  In particular, the Journal focused on Jornaler@WorkIt, and WorkerReport. Read more here.

Today’s News & Commentary — December 22, 2016

Yesterday, the New York Times reported that President-elect Donald Trump announced two agreements with unions at the Trump International Hotel Las Vegas and the Trump International Hotel D.C., a move that could reduce conflicts of interest between the President-elect and the National Labor Relations Board.  As president, Donald Trump will have the power to fill empty seats on the Board and be responsible for appointing a new general counsel when the current general counsel’s term expires in November 2017.  There are currently two vacant seats on the National Labor Relations Board.  Harry I. Johnson’s term expired in August 2015, and the Senate never acted on President Obama’s renomination of Kent Y. Hirozawa.  Chairman Mark Gaston Pearce’s term will expire on August 27, 2018.  Member Phillip A. Miscimarra’s term will end December 16, 2017, and Member Lauren McFerran’s term will expire on December 16, 2019.  As a result, President-elect Trump could eventually appoint all five members to the Board.  In Las Vegas, the hotel and Unite Here reached a four-year union contract covering approximately 520 workers.  The contract includes a pay raise, access to a pension, and company-sponsored health insurance.  The hotel’s refusal to bargain with the union had been the subject of litigation before the National Labor Relations Board and in federal court.  At the Trump International Hotel in D.C., the Trump Organization agreed to remain neutral in an unionization election, which will allow a card-check rather than a secret ballot election to take place.

The Upshot published a blog on the lack of discussion of automation’s effect on the workforce during the campaign.  Although trade dominated the discussion of job loss, automation plays a far bigger role than globalization on eliminating jobs.  According to a study from Ball State University, trade accounted for just 13 percent of job losses in the manufacturing sector.  However, it is not just manufacturing jobs that are at risk.  A McKinsey report predicts that 45 percent of actions workers are paid to perform could be automated.  Labor economists suggest that “there are ways to ease the transition for workers,” such as “retraining programs, stronger unions, more public-sector jobs, a higher minimum wage, a bigger earned-income tax credit and, for the next generation of workers, more college degrees.”  However, Trump has continued to focus on trade and trying to prevent the offshoring of jobs.  Read more here.

In other automation news, Uber was forced to pull its self-driving cars from San Francisco after the Department of Motor Vehicles withdrew their registrations.  The Department claims that the company had failed to properly register the vehicles because they had not obtained a special permit for autonomous cars.  Uber argues that their cars to do not fall within the state’s definition of “autonomous” because the cars must have a person constantly overseeing their driving.  If the state designates Uber’s cars as “autonomous,” the company would have to report all crashes.  The company continues to test their self-driving cars in Pittsburgh.  Read more here.