Today’s News & Commentary — March 16, 2017

Federal judges in Hawaii and Maryland dealt a blow to President Trump’s revised travel ban yesterday.  In Honolulu, U.S. District Court Judge Derrick K. Watson granted a nationwide temporary restraining order preventing the Trump Administration’s executive order from taking effect.  Hours later, U.S. District Court Judge Theodore D. Chuang in Maryland issued an order preventing the key provision, which would have stopped the U.S. from issuing visas from six countries for 90 days, from being implemented.  Read more here.

The Federal Reserve raised the benchmark interest rate yesterday for the third time following the financial crisis.  It opted to raise the benchmark by a quarter of a percentage point and continues to predict two additional rate increases this year.  In a press conference regarding the decision, Janet Yellen, chairwoman of the Federal Reserve, showed confidence in the economy stating “[w]e’re closing in, I think, on our employment objective; we’re coming closer on our inflation objective. … It looks to us to be appropriate to gradually raise the federal funds rate to neutral.”   A historical examination of the Federal Reserve’s involvement in rate increases can be found here.

Yesterday, the Senate voted 51-48 to repeal an Obama Administration regulation restricting the sectors in which states could require a drug test for unemployment benefits.  President Trump is expected to sign the repeal into law.  Because the regulation was repealed under the special procedures outlined in the Congressional Review Act, Congress only requires majorities in both chambers to undo recently finalized regulations.  This regulation is the eighth Obama regulation to be repealed under the Congressional Review Act.

At the New Yorker, Jonathan Blitzer suggests that the case of Daniel Ramirez, a recipient of the Deferred Action for Childhood Arrivals (DACA) program, demonstrates how the Trump Administration could undermine the program without formally abolishing it.  Ramirez and his legal team have alleged that Ramirez’s due process rights were violated when he was arrested.  The government has responded that DACA status can be revoked at any time if a DACA beneficiary is convicted of a crime or considered to be a threat to public safety.  Ramirez has not been convicted of a crime, and he and his legal team maintain that the government has no evidence that he is a threat to public safety.  The article questions whether DACA’s protections and the emphasis on high-priority immigration enforcement will prove illusory in the face of such broad discretion delegated to immigration enforcement officials.  Blitzer states that “[w]hile the Trump Administration may preserve DACA on paper, honoring the policy in practice would require being clear about who is and isn’t a priority for detention by immigration agents.”

Today’s News & Commentary — March 2, 2017

The Wall Street Journal reports that the Trump Administration has developed a new draft policy deemphasizing the role that the World Trade Organization plays in trade enforcement.  Instead, the Administration would rely more aggressively on U.S. law and “all possible sources of leverage to encourage other countries to open up their markets.”  The draft document outlining this strategy could be released as early as today.  In his speech to Congress on Tuesday, President Trump said, “I believe strongly in free trade, but it also has to be fair trade. It’s been a long time since we had fair trade.”  Trade was a popular issue for President Trump in his campaign, and he vowed to be tougher on enforcement.  Read more here.

While some workers in the U.S. have celebrated the United States’ withdrawal from the Trans-Pacific Partnership (TPP), the New York Times published an article focusing on the workers who fear that the United States’ departure from the agreement could lead to an abandonment of labor and environmental commitments in TPP countries.  Do Thi Minh Hanh, a Vietnamese labor activist, fears that “[t]he Vietnamese government will use this as an excuse to suppress the labor movement” because “[t]hey never wanted to have independent unions in Vietnam.”  The United States and Vietnam had a side agreement, or consistency plan, to ensure compliance with certain basic labor standards including criminalizing forced labor and the elimination of a government ban on independent unions.  While critics of these protections have maintained that they are largely ineffectual, some proponents including law professor David A. Gantz, an expert on international trade agreements, argue that the provisions in the TPP “might have made a real difference.”

Uber continued to make headlines when a video of Travis Kalanick, Uber founder and CEO, arguing with an Uber driver, Fawzi Kamel, became public.  Responding to Kamel’s contention that Uber has slashed rates for drivers, Kalanick told Kamel that he needs to “take responsibility” for his own issues.  Yesterday, in a memo to workers at Uber, Kalanick stated that “[i]t’s clear this video is a reflection of me” and “the criticism we’ve received is a stark reminder that I must fundamentally change as a leader and grow up.”  The video’s release and Kalanick’s apology comes shortly after former-Uber engineer Susan Fowler published a blog post exposing sexism at the company, which garnered significant media attention.  In an optimistic New York Times piece, Farhad Manjoo opines that the Uber scandal “feels like a watershed” and predicts a change in the treatment of women in tech.  In an industry where Fowler’s complaints ring true for many, diversity advocates suggest that the recent actions by Uber to address the incident are only the beginning.

Veronica Escobar, an El Paso County Judge, authored an op-ed in the New York Times, describing how President Trump’s immigration policies could harm the U.S. and in particular, her community of El Paso.  She highlighted the jobs created by cross-border trade and the contributions of dreamers, undocumented immigrants who entered the United States as children, to the U.S. economy.  She says that if given work authorization, dreamers are estimated to increase government revenues by $2.3 billion.  Read more here.

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.