
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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September 24
UAW expands strike, files ULP against a Republican senator and hosts Biden on the picket line. NLRB ALJ issues first Cemex bargaining order.
September 22
Biden and Lula announce Partnership for Workers’ Rights; GAO clears Su to serve as acting Secretary of Labor indefinitely.
September 21
DHS policies for Venezuelan migrants; reduced arbitration fees under No Surprises Act; increasing religious objections to workplace DEI policies.
September 19
Canadian autoworkers continue negotiations with Ford’s operations in Canada, Trump announces a rally in Detroit next week with union workers, and talk shows backtrack on plans to return to air without writers.
September 18
UAW enters its fourth day of striking with plans to meet Stellantis at the negotiating table; 13 of the 14 bargaining units representing Southeastern Pennsylvania Transportation Authority (SEPTA) will negotiate new contracts in the next six months; a Brazilian labor court ordered Uber to pay ~$205 million in fines for irregular working relations with app drivers; unions across many sectors press lawmakers to curb potential threats from artificial intelligence
September 17
Updates from UAW’s strike, Dartmouth College athletes file petition to unionize, visual effects artists at Marvel Studios unanimously vote to unionize, and California’s legislature passes a variety of pro-worker bills.