Those Job Crushing Regulations

Donald Trump and the Republicans in Congress love to refer to regulations as “job crushing.”  When Trump spoke recently at the Conservative Political Action Conference he not only said that companies can’t hire because of regulations, but he also said that “we’re going to put the regulation industry out of work and out of business.”  Trump has already taken steps to make it much harder for government agencies to do their jobs.  When he came into office, he imposed a hiring freeze, and he issued an executive order decreeing that the cost of all new regulations issued by each department or agency for fiscal year 2017 can’t be greater than zero regardless of the benefits to be gained from the regulations.  Now, Trump has proposed a budget that would dramatically slash the budgets of most federal agencies.  Government “regulators” do a great deal of important work to help sand some of the harshest edges off of our capitalist economy.  I’ll leave it to others to talk about the importance of environmental and food safety regulations, but workers desperately need a vigilant Occupational Safety and Health Administration (OSHA) to protect them from injuries and chemical exposure on the job.  To take just one example, in the last days of the Obama Administration, OSHA issued citations to a manufacturing company after two workers suffered severe hand injuries within ten days due to the company’s failure to install proper safety guards on its machines. While the consequences of inadequate wage and hour regulation are less dramatic, a recent Tenth Circuit case illustrates why there is such a pressing need for the government to monitor workplaces.

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Today’s News & Commentary — March 20, 2017

While President Trump has launched a campaign against undocumented immigrants, his administration has not spoken out about the employers who hire them, notes the New York Times in an editorial today. Faulty enforcement and high evidentiary hurdles make holding employers accountable difficult. The Times faults the administration’s one-sided focus on demonizing immigrants while not providing a path to citizenship and putting money into (controversial) solutions to verify employment eligibility, like E-Verify.

Trump’s push to bring back coal jobs (“a delusion,” according to the New York Times in a separate editorial) is prompting Republican legislatures in coal country to reenact looser mine safety laws. Some lawmakers claim that the “federal government can do the inspections just as well as the states”—a seemingly out-of-character stance, until one looks at the current federal government, which has no interest in regulating coal companies and plans to cut the Department of Labor budget by 21%. Other legislatures are passing laws that cut down on annual safety checks (in exchange for a “‘safety analysis’ based on conversations with miners”) and proposing bills that lower standards.

A former law student of Neil Gorsuch claims that the Supreme Court nominee implied that women manipulate companies during interviews to gain maternity benefits, according to NPR. The former student wrote a letter detailing her class experience to Senate Judiciary Committee leaders, which was posted by the National Employment Lawyers Association and the National Women’s Law Center last night.

Labor secretary nominee Alex Acosta will be heard before the Senate HELP Committee this Wednesday, reports The Hill. Acosta, whose hearing was delayed once already, hasn’t faced the same level of criticism as former nominee Andy Puzder. Many are eager to learn more about the Labor tap, who has managed to avoid the spotlight and is a “blank page on policy,” according to the Wall Street Journal.

Weekend News & Commentary — March 18-19, 2017

On the campaign trail, President Trump pledged that he would create 25 million jobs over the next decade.  Will he keep his promise?  The New York Times thinks not.  The Editorial Board takes aim at the President’s “wheezing jobs effort,” pointing to his recently released budget proposal — which would cut the Department of Labor’s budget by 21% and eliminate several important jobs programs — and his neglect of important job markets, such as the clean energy sector.

President Trump’s labor policies have also attracted the ire of unions and labor leaders.  The SEIU and Food Chain Workers Alliance have announced a general strike on May 1 (#May1Strike), coinciding with International Workers’ Day.  More than 300,000 food chain employees and 40,000 service workers are expected to turn out, The Hill reports, to protest the Trump administration and in particular its hardline stance on immigration.

Meanwhile, the administration’s immigration crackdown has worsened the farm labor shortage in California, The Los Angeles Times reports.  Although farm wages have shot up, few Americans have been willing to accept those jobs — casting doubt on President Trump’s claim that tougher borders will help American-born workers.

Disney will be paying $3.8 million in back wages to 16,339 of its “cast members” as part of a settlement with the Department of Labor.  The DOL’s investigation revealed that Disney resorts in Florida deducted a “costume” expense that caused some employees’ hourly rates to fall below the federal minimum wage.  The Christian Science Monitor has more.

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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. 

 

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 15, 2017

Labor and employment issues are in the spotlight this week as advocates continue the battle over the President’s pending nominees. Politico reports that “Democrats have settled on their line of attack against Trump’s Supreme Court nominee: He’s anti-worker!” Critics of Judge Gorsuch have focused on his ruling against a professor who lost her job after taking time off to recover from cancer and his dissent arguing that a truck driver who was fired for leaving his load to seek shelter after 2 1/2 hours without heat on a sub-freezing night was not protected by the Surface Transportation Assistance Act. Meanwhile, the conservative group America Rising Squared released a TV ad in favor of Alex Acosta, the President’s nominee for Secretary of Labor. The highlights include: a spotlight on the Acosta’s time at Harvard Law School, his history of fighting “radical Islamic terrorists,” and a ringing endorsement from Sen. Ted Cruz.

The New York State Board of Regents is getting rid of a teacher literary test found to have a disparate impact on prospective black and Hispanic teachers. The test, called the Academic Literary Skills Test (ALST), is one of four that prospective teachers must currently pass in New York. In 2015, a federal judge held that the ALST was not discriminatory, despite a 2014 study found that only 46 percent of Hispanic candidates and 41 percent of black candidates passed on the first try, compared with 64 percent of white candidates. The test also costs $131. Eliminating the test underscores New York’s commitment to increasing the number of non-white teachers, who currently make up less than 20% of the country’s public school teachers.

Politico  provides an excellent preview of the ways the rest of the world is “prepar[ing] to move on without [the] U.S. on trade” in the aftermath of the failed TPP. In sum, “other countries are ready to rush into the vacuum the U.S. is leaving behind.” New deals are already being negotiated by new blocs of countries – with China most notable among them. While the TPP was controversial among labor groups, the U.S. now stands to lose billions of dollars per year in export sales if it is edged out of new free trading blocs. Read more on labor standards under the TPP here.

Finally, Theresa May indicated this week that the U.K. will undergo a sharp break from the E.U. Millions of workers will be affected, and Science explained yesterday how scientists and researchers in particular are bracing for the shock. Between 2007 and 2013, scientists brought in over 7 billion Euros in EU funding, second only to Germany. However, it is now possible that U.K. researchers will no longer be able to apply for E.U. grants, nor recruit students and other researchers easily from other parts of Europe. And of course E.U. scientists who are not citizens of the U.K. are unsure if they will be able to remain in the country. To mitigate some of the effects, the U.K. government has pledged to increase its funding of  R&D by 23% over the next four years, and launching efforts to partner with non-E.U. countries on joint innovations. However, the situation is very much still “in limbo,” and some scientists fear they will be forced to spend the next 5-10 years focused on “damage limitation.”

Today’s News & Commentary — March 14, 2017

While Uber attempts to discourage the unionization of drivers in Seattle, some drivers are challenging the municipal law giving drivers the right to organize.  According to the Seattle Times, “the drivers are seeking a temporary restraining order barring the city from enforcing the law — the first of its kind in the country — saying it goes against federal labor and privacy laws, as well as violates their rights to free speech and association.”  The lawsuit is being led by the National Right to Work Foundation and the Freedom Foundation.  The drivers primarily argue that the National Labor Relations Act pre-empts the municipal law.

Another innovative municipal law has gone into effect, in San Jose, CA.  The Mercury-News notes that ” San Jose businesses with 36 or more employees must now offer extra shifts to part-time workers before hiring new staff.”  Under the Opportunity to Work measure, “companies must offer — in writing — extra work hours to existing qualified part-time employees.  If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts.  The idea, advocates say, is to give existing workers access to extra hours to boost their paychecks.”

Muslim workers in Europe suffered a legal setback in seeking to assert their right to wear the hijab in the workplace.  The Washington Post reports that “The European Court of Justice issued a non-binding ruling Tuesday that employers can prohibit the Muslim headscarf in the workplace, setting an important precedent for a continent in the midst of a fraught political climate.”  The ECJ concluded that rules against the wearing of the hijab in the workplace were in fact rules against the visible wearing of religious signs, and thus not direct discrimination.  Notably, “in the absence of official internal regulations prohibiting what employees can wear to work, the court suggested, Muslim women have a stronger case for wearing the hijab to the office.”

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