How Bad Could it Get (Legally)?

It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement.  This important work is underway, with contributions from academics, labor lawyers, union organizers, and others.  Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review.  Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed.  This kind of optimism is necessary to visionary thinking, and it’s badly needed today.

But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years.  Most of us know much of this already, so you might wonder what the point of such a morose exercise would be.  The idea is not to wallow.  To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”

Some caveats.  One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely.  Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts.  Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible.  For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).

All that said, here’s what seems within the realm of the plausible: Continue reading

Do Workers Realize How Much Collective Bargaining Scares Employers?

In February, teaching fellows in eight departments at Yale University voted in favor of union representation.  Rather than bargain with the teaching fellows’ union, Yale has insisted upon first exhausting its appeals, apparently hoping that Donald Trump’s yet-to-be-named appointees to the National Labor Relations Board will come to its rescue.  In the meantime, some of the teaching fellows have embarked upon a hunger strike, generating a great deal of publicity, and inflaming tensions on campus as right-wing student groups have taken to taunting the hunger strikers.

At the same time that this controversy has been brewing at Yale, employer trade associations have been aggressively lobbying Congress to do something to overturn the NLRB’s decision in Browning-Ferris Industries, which makes it easier for workers to bargain with lead firms that exercise power over their terms and conditions of employment.

When I think about the events at Yale and the employer community’s reaction to Browning-Ferris, I find it reassuring that collective bargaining still seems to strike so much fear into the hearts of employers.  And yet, workers don’t seem to realize this.  Instead, the share of the economic pie that workers get continues to shrink, while the percentage of workers in unions is also declining.  And, instead of joining together with their co-workers to bargain collectively, some workers have turned to a billionaire demagogue who tells them they should let him be their voice since he alone can solve their problems.

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When They Talk About Joint Employers, Republicans Are Either Lying or Confused

Now that Republicans in Congress are about to get a President who will sign their bills into law, they are eager to overturn even the most modest pro-worker measures that President Obama’s appointees were able to implement.  One of the top items on the chopping block is the “joint employer” standard that the NLRB announced in 2015 in its Browning-Ferris Industries decision.  What’s unfortunate is that rather than debate the Board’s decision on the merits, Republicans in Congress insist upon misrepresenting the decision and its effects.

Consider a recent column by Representative Bradley Byrne, who sits on the House Education and the Workforce Committee.  He wrote, “[t]here may be no regulation that threatens to crush small businesses and working people more than a recent ruling from the National Labor Relations Board relating to the definition of a ‘joint employer.’”  Byrne asserts that the ruling will make big firms liable for the actions of small firms, and thus they are “unlikely to do business with them anymore.”  This is simply wrong.  Joint employers are not automatically liable for each other’s actions.  Instead, under long-settled Board law, a non-acting joint employer is only liable where it knew or should have known that the other employer acted for unlawful reasons.  Apart from being wrong as a matter of law, the claim is absurd as a matter of common sense.  It’s like saying no homeowner would ever hire an electrician because there are some circumstances where the homeowner could be liable for actions taken by the electrician.  In fact, the Browning-Ferris decision wasn’t about liability, but rather about the right of workers to bargain with actual decision-makers.  The workers in Browning-Ferris were employed by a staffing agency, but Browning-Ferris retained the right to dictate who could work at the facility, it set schedules, controlled the speed of the production line, and imposed a maximum wage rate for the agency’s employees.  When the workers formed a union, they wanted the right to bring Browning-Ferris to the table, so that they could bargain about these vital issues.  Byrne also makes the unsupported claim that 600,000 jobs “could be either lost or not created” because of the Browning-Ferris decision.  But, at most, the decision might lead big firms to follow a different business model – if big firms choose to hire workers directly rather than through intermediaries, the workers’ jobs won’t disappear.

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Guest Post: 2016 Steps Forward on Joint Employer Liability

Jennifer (JJ) Rosenbaum (@RosenbaumJJ) is a Robina Foundation Visiting Human Rights Fellow at the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School.

From the on-demand economy to construction sites and fields, joint employer liability continues to be fundamental to combating growing inequality and substandard conditions for workers.

The U.S. Department of Labor (USDOL) started 2016 with two strong commitments on this issue – new administrative guidance and new data collection efforts.  The International Labor Organization (ILO) also takes up these issues in June as part of its general discussion on decent work in global supply chains.  And trade unions and workers’ centers continue their organizing and campaigns providing critical information, analysis, and momentum.

New Joint Employer Administrative Interpretation

On January 20, 2016, the USDOL issued a new Administrative Interpretation (AI) from Wage and Hour Administrator David Weil reminding business entities that they may be jointly liable for minimum wage and overtime obligations towards workers even where they are not the “employer” for purposes of payroll or other common law definitions.  The AI follows six months after USDOL’s guidance on independent contractor misclassification and the National Labor Relations Board’s decision in Browning-Ferris Industries of California, which expanded the NLRB’s joint employer standard.

Of course, broad joint employer liability under the Fair Labor Standards Act (and the Migrant and Seasonal Agricultural Worker Act which uses the same test) is long established as a protection for the lowest wage workers in the U.S. economy.  Still, the USDOL’s guidance and graphics are helpful tools to remind business entities that using temporary staffing agencies, subcontracting, and other similar business structures may not insulate them from responsibility to ensure that workers receive basic minimum wage and overtime protections.  And the USDOL’s message is clear to business entities — their growing use of alternative work arrangements does not shield them from liability.  In fact, it makes joint employment relationships and resulting liability more common.

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Today’s News & Commentary — September 24, 2015

Workers at the busiest distribution warehouse in the Western Hemisphere are on strike, Buzzfeed reports.  Since Tuesday, workers at the Los Angeles warehouse, which serves giant retailers like Amazon, Kmart, Sears, and Lowes have been protesting their working conditions.  The workers’ complaints includes wage and hour violations, unsafe working conditions, and retaliation by employers against organization attempts.  As one worker put it, “This warehouse moves products for some of the largest companies in the world, but pays us barely more than minimum wage.”  This case may present a high-stakes test of the real impact of the NLRB’s Browning-Ferris decision–discussed further here.  After all, warehouse workers are directly employed by California Cartage, but Amazon accounts for a third of the warehouse’s business.  As Professor Sachs points out in the article, the law is becoming increasingly friendly to joint employer claims, “even in cases where there is no direct or immediate supervision by the putative joint employer.”  In other words, Amazon might be held liable for the workers’ conditions at the warehouse.  For now, the workers vow to strike until they see some changes made.

Pope Francis has arrived in the U.S., and the labor movement is eager to welcome him.  Lydia DePillis at the Washington Post reports that low-wage workers from federal facilities in Washington have been striking over the past couple of days carrying signs in the Pope’s image.  She writes that labor groups “are making an unprecedented show of unity with the Catholic church at a time when its leader is more focused on issues of inequality and economic justice than any other pope in recent memory.”  Friar Clete Kiley, who founded the Priest-Labor Initiative in 2012, spoke at the AFL-CIO’s conference in June; Cardinal Donald Wuerl, one of Pope Francis’s closest confidants in the U.S., also attended the AFL-CIO conference; and the Pope has made appointments across the country who are reaching out to organized labor.

Union leaders joined together to welcome the Pope at the White House yesterday.  According to Politico, the guests included AFL-CIO President Richard Trumka, SEIU President Mary Kay Henry, and other union leaders and activists.  Notably, the Pope’s motorcade is also embracing American unions; Pope Francis has ditched his Mercedes for a Fiat, and Fiat-Chrysler has the closest relationship with the UAW of Detroit’s Big Three.

In gig economy news, Lydia DePillis at the Washington Post reports that a hospitality workers union in Washington, D.C., has proposed a bill for regulating Airbnb.  UNITE HERE Local 25 represents about 6,500 workers in the D.C. area, and they explain they seek to protect hospitality workers’ jobs as well as the housing market in the area.  Their proposed legislation attempts to address hosts who own and rent many units; their bill limits the number of rentals a user may have at a given time to 5.  Solomon Keene, president of Hotel Association of Washington, explains that it’s not an attempt to drive Airbnb out of the market, but rather, an attempt at preventing entrepreneurs from using Airbnb to set up a more lightly regulated, geographically distributed hotel. Continue reading

Today’s News & Commentary — August 26, 2015

Business leaders have begun ramping up efforts to meet with legislators in anticipation of the NLRB’s Browning-Ferris decision, expected this week. According to Lydia DePillis at the Washington Post, an organization called the Coalition to Save Local Businesses, consisting of 20 associations including some of the biggest restaurant, hotel, retail, and construction lobby groups in the country, was formed earlier this year. Over the past few months, the Coalition has testified before Congress, run ads, and most recently, hosted a lunch for House minority whip Steny Hoyer (D-Md.). Their efforts are in anticipation of a potential ruling by the NLRB that would make franchisors and general contractors liable for legal violations of subcontractors, and allow workers to bargain directly with businesses at the top of the chain.

In the Browning-Ferris case, a Teamsters local tried to organize workers for the recycling company, hired through a temporary staffing agency called Leadpoint, and sought to bargain not only with Leadpoint, but also with Browning-Ferris as a joint employer. In a different case in 2014, the General Counsel of the NLRB stepped in to issue complaints against McDonald’s as a joint employer along with its franchisees. Catherine Fisk analyzed the two cases and their possible impact for OnLabor last year. According to Politico, workplace advocates and business groups all generally agree that the NLRB will loosen the “joint employer” standard in the decision expected this week, expanding liability for businesses.

According to The Wall Street Journal, a report by the Congressional Budget Office projects more American workers who have been out of the workforce temporarily will return in the coming years, at a faster rate than anticipated. The labor-force participation rate is already at its lowest level since 1970, and will continue to decline as baby boomers retire, but many think that the return to the job market that the CBO forecasts could explain why wages have remained low in spite of recent drops in unemployment. Continue reading

Today’s News and Commentary–December 17

Three Kentucky counties have begun the process of enacting county-level right-to-work laws, including Warren County, home of the UAW-organized Corvette plant in Bowling Green. In Warren County, a “final reading” of the right-to-work law—the last step in the enactment process—is scheduled to take place on December 19. The Nation has explained that the National Labor Relations Act, which allows a “State or Territory” to pass a right-to-work law, may preempt action at the county and municipal level. On Labor has covered this matter in some detail. It is also not clear that counties are empowered to enact right-to-work legislation under Kentucky law. Kentucky Attorney General Jack Conway, a Democrat, will issue a legal opinion on whether Kentucky law allows such actions. These measures are the beginning of a coming sustained and widespread push by conservative groups, including ALEC and the Heritage Foundation, to enact local right-to-work legislation.

The NLRB may issue decisions in the widely anticipated Browning-Ferris and Northwestern University cases as early as today. On Labor has covered both cases in detail. In Browning-Ferris the Board is deciding whether to expand its definition of “joint employer” so that businesses may be held responsible for labor violations committed by their franchisees or sub-contractors when the businesses exercise a sufficient degree of control over the franchisees or sub-contractors. Reuters has a short explainer here. In Northwestern University, the Board will consider whether football players at that university are “employees” under the National Labor Relations Act, with implications for other ambiguous relationships at academic institutions.

Employees at a Sysco location in Atlanta voted to join the Teamsters yesterday. The vote was 220 to 141 in favor of unionization. The vote comes as Sysco, the world’s largest industrial food service provider, attempts to acquire U.S. Foods, the second largest. The proposed merger has drawn intense scrutiny from federal and state authorities.

Among its many provisions, the massive “CRomnibus” legislation recently approved by Congress loosens restrictions on the number of hours truck drivers can spend driving in a week. Under the existing 2013 rule established by the Federal Motor Carrier Safety Administration, truck drivers could drive a maximum of 70 hours per week and were required to take a certain amount of rest and to take part of that rest during the early morning hours. With the CRomnibus, Congress increased the maximum number of weekly driving hours from 70 to 82 (the pre-2013 maximum) and suspended the requirement that drivers rest during the early morning hours. Lydia DePillis of the Washington Post covers the changes in detail. The Department of Transportation, the Teamsters, and Public Citizen all argued against loosening the restrictions, while large trucking companies and drivers operating as independent contractors supported the change.

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