
Michelle Berger is a student at Harvard Law School.
In today’s News and Commentary: the Fifth Circuit agrees that workers have the right to choose their own audiologists under the Longshore and Harbor Workers’ Compensation Act, supporters of Secretary of Labor nominee Julie Su shift tactics, and organizing in non-traditional settings continues to occur.
In a decision Tuesday, the Fifth Circuit upheld a Department of Labor regulation that ensures workers have the right to choose their own audiologists for the purposes of workers’ compensation under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) – rather than being required to use healthcare providers their employers select. The LHWCA states that workers “have the right to choose an attending physician … to provide medical care.” The Fifth Circuit observed that, in granting workers this right, Congress recognized that when “employers [] select[ed] physicians for their employees, the care that those employees received sometimes suffered.” The question presented was whether audiologists qualify as “physicians” under the LHWCA. Under DOL regulations, they are. But the employer in the case disagreed.
After engaging in statutory interpretation and analyzing of the DOL regulation under Auer and Skidmore, the court ultimately agreed with the DOL. The case was notable for its largely cursory treatment of Chevron deference. Indeed, after citing Chevron, the court noted in a footnote that its “judgment in this case is not conditional on Chevron’s longevity.”
Meanwhile in Washington D.C., supporters of President Biden’s nominee for Secretary of Labor, Julie Su, continue their attempts to rustle up enough votes to secure her nomination. As I’ve noted, Su faces a thin margin ahead of her yet-unscheduled floor vote. The Hill reported on Tuesday that a lack of headway with Senators Manchin (D – W. Va.), Jon Tester (D – Mont.), and Kyrsten Sinema (I – Ariz.) has led Su’s supporters to turn to moderate Republican Senator Lisa Murkowski (R – Alaska). While the Senate’s Democratic leadership declined to confirm this strategy, Senator John Hickenlooper (D – Colo.) confirmed his intentions to discuss Su with Murkowski. Hickenlooper was emphatic in his support of Su: “There is no one like Julie Su I’ve met anywhere in the bureaucracy that understands apprenticeships and how skills training can occur, how we can do it at scale,” Hickenlooper told reporters.
Elsewhere in the country, and illustrating how energy remains high around organizing in the United States, dancers at a strip club in Portland filed for a union election earlier this week. As Linh reported last month, a dancers’ union in Los Angeles was recently the first in four decades to win a union contract at a U.S. strip club. Finally, VICE reported Wednesday on the organizing efforts of a tenants’ union in California, who are fighting to stave off rent increases and evictions after a developer that brands itself a “disrupter” bought their housing complex.
Daily News & Commentary
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July 6
Municipal workers in Philadelphia continue to strike; Zohran Mamdani collects union endorsements; UFCW grocery workers in California and Colorado reach tentative agreements.
July 4
The DOL scraps a Biden-era proposed rule to end subminimum wages for disabled workers; millions will lose access to Medicaid and SNAP due to new proof of work requirements; and states step up in the noncompete policy space.
July 3
California compromises with unions on housing; 11th Circuit rules against transgender teacher; Harvard removes hundreds from grad student union.
July 2
Block, Nanda, and Nayak argue that the NLRA is under attack, harming democracy; the EEOC files a motion to dismiss a lawsuit brought by former EEOC Commissioner Jocelyn Samuels; and SEIU Local 1000 strikes an agreement with the State of California to delay the state's return-to-office executive order for state workers.
July 1
In today’s news and commentary, the Department of Labor proposes to roll back minimum wage and overtime protections for home care workers, a federal judge dismissed a lawsuit by public defenders over a union’s Gaza statements, and Philadelphia’s largest municipal union is on strike for first time in nearly 40 years. On Monday, the U.S. […]
June 30
Antidiscrimination scholars question McDonnell Douglas, George Washington University Hospital bargained in bad faith, and NY regulators defend LPA dispensary law.