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 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 9, 2017

Congresswomen Jan Schakowsky (D-Ill.) and Pramila Jayapal (D-Wash.) stood in solidarity with rallying crowd of women for International Women’s Day. According to Politico, labor unions such as the American Federation of Teachers and National Nurses United were in attendance. Rep. Schakowsky addressed the protestors, stating, “American women still earn far less than men 50 years after President Kennedy signed the Equal Pay Act.”

The Huffington Post reports that the number of deportations of undocumented workers under the Trump administration, alongside the regime’s immigration policies, begs the question of how reporting standards in immigrant labor will shift. Chicago attorney Christopher Williams, who specializes in immigrant wage theft cases, notes, “There’s a lot of fear out there, and it’s driving workers further underground. I honestly think it’s creating an incentive to hire more undocumented workers, because now they’re even more vulnerable to being exploited.” So far, the Labor Department has not issued a press release detailing wage and safety investigations since Trump’s presidency commenced.

Meanwhile, the D.C. Circuit has issued its opinion in Scoma’s of Sausalito. Scoma’s involved an employer’s withdrawal of recognition of UNITE HERE Local 2850 based on the employer’s belief that the union no longer enjoyed majority support of the bargaining unit.  The Board held that the withdrawal was illegal and issued a bargaining order. The D.C. Circuit agreed that withdrawing recognition was an unfair labor practice, but refused to enforce the Board’s bargaining order remedy. Instead, the court of appeals sent the case back to the Board and ordered the Board to come up with a less “extraordinary” remedy for the illegal withdrawal of recognition.

In other NLRB news, the Board has ordered a Regional Director to revisit its decision that NBCUniversal workers in Chicago, New York, and Los Angeles were part of a single nationwide bargaining unit.

Today’s News & Commentary — March 8, 2017

Today is International Women’s Day, and many women around the country are participating in a strike that has been billed as “A Day Without a Woman.”  The action is intended to highlight the economic importance and impact of women on society, and it was organized following the Women’s March on January 21.  CNN reports that American women “aren’t the only ones taking to the streets.”  In Ireland, women and pro-choice activists are expected to rally across the country in a day of action dubbed “Strike 4 Repeal,”  aimed at repealing Ireland’s eighth amendment, which places the right to life of an unborn child on equal footing with the right to life of the mother.  In Australia, thousands rallied in Melbourne, demanding economic justice and reproductive rights for women around the world.  In the Philippines, women’s rights activists marched to the embassy in Manila, carrying signs calling for employment and discrimination reforms. Protests also took place in Rome and Moscow.

Politico weighs in on Trump’s revised executive order, noting that attention “may now shift to the refugee-related provisions” in the order.  The new order exempts valid visa holders and eliminates the provision that called for the U.S. to prioritize religious minorities (i.e. non-Muslims) in refugee admissions, but left in place a 120-day suspension of the refugee resettlement program (although Syrian refugees are now barred only temporarily, whereas before they were barred indefinitely).

At the Atlantic, Alana Semuels interviews David Weil, an Obama appointee who directed the Department of Labor’s wage-and-hour division, about the future of DOL under Trump.  One of Weil’s big worries concerns “the overlay of immigration policies on…the labor market.”  As Weil put it, “There’s a lot of writing on the wall that deeply, deeply concerns me.”

In international news, Argentina’s main labor union led a mass picket on Tuesday to protest job cuts and pay raises.  According to Reuters, the picket attracted tens of thousands of demonstrators and took place in the midst of a two-day teachers’ strike.  The protests also come at a bad time for Argentinian President Mauricio Macri: key congressional elections are slated to take place in October, and Macri needs his political coalition to do well “in order for him to keep pushing his economic reforms through Congress and position himself for re-election in 2019.”

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.

Weekend News & Commentary — January 21-22, 2017

Only a few days into the Trump presidency, and speculation is rife: what will the new President do next?  In his first few hours in office, President Trump signed an executive order aimed at dismantling the Affordable Care Act — and he is expected to take similar executive action “on a nearly daily basis” for the next month to undo his predecessor’s legacy, The New York Times reports.  Undocumented workers will be anxious to see what President Trump does with the Deferred Action for Childhood Arrivals (DACA) program.  His options include a gradual wind-down of the program or even immediate repeal (POLITICO provides a rundown of the potential scenarios).  But the President’s tough talk on immigration could have costs.  NPR warns that a crackdown on immigrant workers could leave the United States with a farm labor shortage.

In his inaugural address, President Trump painted a bleak picture of the American economy, evoking a landscape of “rusted-out factories scattered like tombstones.”  And while this view is not entirely consistent with reality — as The New York Times points out, the United States is now experiencing one of the longest periods of economic growth in its history — the American worker does face challenges ahead.  President Trump focused on the effects of foreign trade (“The wealth of our middle class has been ripped from their homes and then redistributed all across the world,” he lamented), but the graver threat to American jobs might be the rise of automation — something that Andy Puzder, Trump’s nominee for Labor Secretary, has publicly supported.  Before exiting office, former President Obama warned that technological advancements like the “driverless Uber” could threaten Americans jobs in the near future.  Recode has more.

Speaking of Puzder, Trump’s pick for Labor Secretary is under attack from women’s groups, POLITICO reports.  The National Women’s Law Center and other groups are pressuring lawmakers in the weeks leading up to Puzder’s confirmation hearing, highlighting the nominee’s less-than-stellar record on women’s issues (including his infamous Carl’s Jr. ads and his work as an anti-abortion lawyer in Missouri).  Mounting criticism has sparked rumors that Puzder might back out of the nomination.

Weekend News & Commentary — December 24-25, 2016

Undocumented workers have an equal right to workplace protections, according to the Inter-American Commission on Human Rights.  In a decision issued earlier this week, the IACHR held that undocumented workers should be compensated for workplace injuries — notwithstanding the Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. NLRB, which denied undocumented workers full remedies under federal labor law.  The ACLU, which represented petitioners in the case, has more.

Meanwhile, workers in California will now be relieved of all work duties during break times.  In a class action filed on behalf of ABM security guards, the California Supreme Court held this week that employers cannot require their employees to be “on call” or “on duty” during breaks.  Read more here.

In international news, Taiwan will now require employers to provide their workers with two days off each week, in an effort to improve work-life balance.  The mandatory five-day work week will start January 1st, The Christian Science Monitor reports.

Finally, as 2016 draws to a close, JD Supra offers a look back on some of the most noteworthy developments in employment law: the FLSA overtime rule (now on hold), new federal guidelines on recruiting and compensation, and New York’s upcoming minimum wage increase, among others.