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.

Today’s News & Commentary — June 29, 2016

James Green, noted labor historian, activist, and writer, has passed away.  As the Boston Globe reports, Dr. Green was “a scholar, a writer, a historian, and more”: he worked to protect affordable housing, wrote for numerous publications, traveled to Appalachia to advocate on behalf of coal miners, taught at the University of Massachusetts Boston, and wrote books about West Virginia coal miners and Chicago’s Haymarket Square bombing.  Encouraged by the late-historian C. Vann Woodward, Dr. Green wrote and taught “history with a purpose,” blending “life in the field with teaching in the classroom.”  As Dr. Green told the Globe in a 2002 interview, “There’s no break between what I do here and what I do outside.”  The New York Times has paid tribute to Dr. Green as well.

Judge Sam Cummings of the U.S. District Court for the Northern District of Texas has issued a preliminary injunction against the Labor Department’s “persuader rule.”  As Politico explains, Judge Cummings wrote that the plaintiffs demonstrated that the rule will “cause irreparable harms” by “reducing access to full, complete, unconflicted legal advice,” “reducing access to training, seminars, information, and other advice relating to unionization campaigns,” and “burdening and chilling First Amendment rights.”  As for what’s next, it’s up to the Labor Department to file an appeal.  Jeff Londa, lead attorney for the plaintiffs, said that if the Labor Department does not file an appeal, “we would hope to turn the injunction into a permanent injunction.”

A number of states are taking steps to curb the use of noncompete agreements.  According to the New York Times, these efforts are driven in large part by a desire to spur entrepreneurship and help the economy.  Noncompete agreements, for example, were “one ingredient in the recipe that worked against Massachusetts and to the advantage of Silicon Valley, where employees can depart and start their own companies mostly without fear of a lawsuit.”  The Massachusetts House of Representatives is set to vote this week on a noncompete reform bill.

The French Senate has approved the government labor bill, 185-156.  ABC News reports that on Tuesday, thousands of protestors marched through Paris and other major French cities in protest.  The Eiffel Tower also remained closed, as many of its employees joined the protests.  Photos and videos of the protests can be found at RT, which reports that the protests resulted in up to 40 arrests.  Organizers estimated that at least 55,000 people participated in the protests, while the police estimated the number of demonstrators to be between 14,000 and 15,000.  The bill will now return to the National Assembly, France’s lower house of Parliament, for further debate.

Prosecution of Workplace Health and Safety Violations: The Sentencing of Donald Blankenship

In April of this year, District Court Judge Irene C. Berger sentenced Donald Blankenship, the former CEO of Massey Energy Company (Massey) to one year in prison and ordered him to pay a fine of $250,000 for conspiring to violate mine safety standards.  Massey owned Upper Big Branch mine, where six years ago an explosion killed 29 miners, the largest mining disaster in 40 years.  Reports revealed that the explosion occurred when a spark ignited a build up of methane gas causing it to explode, which in turn triggered a coal dust explosion (At trial, Blankenship insisted the explosion was an “act of god.”)  The reports also revealed that the explosion could have been prevented if Massey followed basic mine safety precautions.  Blankenship was not charged with any liability for the mining disaster itself, but the events at UBB were the catalyst for the investigation into the CEO.

Blankenship is thought to be the first CEO of a major U.S. company prosecuted for safety violations in the wake of a workplace disaster. In addition to charging health and safety related violations, the government indicted him for lying to the government and Massey shareholders.  A recent Department of Justice (DOJ) memorandum issued by Sally Quillian Yates, Deputy Attorney General, on “Prosecution for Worker Safety Violations,” directs prosecutors to charge multiple offenses in conjunction with acts prohibited by federal workplace safety statutes.  Although Blankenship’s prosecution began before the DOJ issued the memo, his prosecution used multiple allegations to bring more substantial charges.  The DOJ memo and Blankenship’s prosecution highlights the weak criminal sanctions for workplace safety crimes as compared to other crimes, and in particular, demonstrates the disparate sanctions for executives convicted of white-collar fraud.

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Today’s News & Commentary — April 8, 2016

Unions are experiencing delays in their efforts to create a $50 million super PAC to support labor-friendly Democrats in the 2016 presidential and congressional races.  According to the Wall Street Journal, the delays are attributable to a few discrete factors: First, many “working-class white men and women, many of whom are union members,” have supported Donald Trump, and the effort to convince these members to vote for Democratic candidates will prove challenging if Trump becomes the Republican presidential nominee.  Second, while the AFL-CIO would like to endorse Democratic presidential frontrunner Hillary Clinton, Bernie Sanders’s victory in Wisconsin and seven other primaries has resulted in a lack of consensus to push Clinton.  Third, large labor unions, like the Service Employees International Union (SEIU) and the National Education Association (NEA), and the 50 mid-sized unions that are part of the AFL-CIO have disagreed on how the super PAC would be run.  “The SEIU and NEA, which rank as the top spenders on political campaigns in recent years, are reluctant to turn over their political funds to a new political organization without retaining enough control over how the money was going to be spent,” the WSJ reported.  No matter what the final organization of the super PAC, it will play an active role in shaping the upcoming election.  In the 2012 election, by comparison, labor unions donated $115 million to pro-Democratic super PACs.

The Eighth Circuit recently held that, despite the 2008 amendments to the Americans with Disabilities Act (ADA) that broadened the definition of a “protected disability,” obesity that is not caused by an underlying physiological condition is not a covered “impairment” for ADA purposes.  In Morriss v. BNSF Railway Company, an applicant received a conditional employment offer contingent on a satisfactory medical review.  On BNSF’s medical questionnaire, Morriss reported that he was 5’10” tall and 270 pounds, that he was once diagnosed as pre-diabetic but was not currently diabetic, and that he had taken appetite suppressants to lose weight but not for any health concerns.  During two subsequent physical examinations, BNSF doctors found that Morriss weighed 285 pounds with a BMI of 40.9 and that he weighed 281 pounds with a BMI of 40.4.  In accordance with its policy not to fill any safety-sensitive positions with applicants with BMIs equaling or exceeding 40, BNSF revoked its conditional offer.  Morriss filed suit, alleging that BNSF discriminated against him on the basis of disability, in part because BNSF regarded his obesity as an actual disability.  The district court found for BNSF, and the Eighth Circuit affirmed, ruling that in order to prevail on a “regarded as” claim, the applicant must show that his obesity was an actual or perceived “physical impairment.”  In turn, in order for one’s weight to be a physical impairment under the ADA, it must both fall outside the “normal” range and occur as a result of a physiological disorder.  JDSupra reports that this interpretation rejected an alternate proposal from the EEOC, which filed an amicus brief on behalf of Morriss.  The agency argued that following the 2008 amendments, a showing of an underlying physical disorder should be required only if a person’s weight is within the normal range.

Donald Blankenship, the former Chairman and CEO of the Massey Energy Company, has been sentenced to one year in prison and a $250,000 fine for conspiring to violate federal mine safety standards.  The sentence comes six years after a deadly explosion in Massey’s Upper Big Branch mine.  According to the New York Times, family members of the 29 miners who died in the explosion watched on from the courtroom’s gallery.  Throughout the trial, the prosecution successfully portrayed Blankenship as the “kingpin of a criminal enterprise,” who knew that safety-law compliance costs money and thus “contributed to an unspoken conspiracy that employees were to ignore safety standards and practices if they threatened profits.”  In a separate op-ed in the NYT, Professor Rena Steinzor noted that Blankenship is the first CEO ever to be convicted of conspiring to violate industrial safety standards.  Also noting that both the Mine Safety and Health Act and the Occupational Safety and Health Act treat systemic safety violations as mere misdemeanors with light prison sentences, Steinzor argued that “Congress should amend the mine safety and occupational safety acts to rank systematic violations by top executives as felonies and to increase the sentences available to judges for white-collar criminals like Mr. Blankenship.”

Today’s News & Commentary—February 10, 2016

President Obama has released his budget, and House Republicans have already rejected it.  As Reuters notes, the $4.1 trillion spending plan includes some measures that could (at least in theory) garner bipartisan support: over $11 billion for the Departments of Defense and State, for example, as well as increased funds for cancer research and opioid addiction programs.  Nonetheless, other proposals, like a $10.25-per-barrel crude oil tax “were clear non-starters.”  The budget also includes, among other measures, $5.5 billion to help young people obtain jobs and $2 billion for an apprenticeship training fund. Politico has further coverage of the budget here and here.

The Hawaii House of Representatives has introduced a bill that would require the state to contribute funds to a public employee collective bargaining fund.  The legislation is a response to Friedrichs: its purpose “is to ensure that public employees are able to effectively collectively bargain with the public employer by establishing a mechanism that will provide the exclusive bargaining representative with the resources necessary to adequately represent public employees.”

At the Washington Post, Lydia DePillis and Joby Warrick report on a potential crisis: the United Mine Workers of America’s pension plan is on the verge of failure.  In response to calls for federal intervention, Democrats and Republicans alike supported a budget deal that would protect the pension funds — until Mitch McConnell blocked it.  McConnell has simultaneously attacked Obama’s Clean Power Plan for the loss of coal-mining jobs, leading union officials and worker advocacy groups to accuse him “of showing indifference to miners even as he campaigns on behalf of coal interests.”

A Cambridge-based networking site aims to target workers left out of LinkedIn.  According to the Boston Globethe site — — is meant to serve as an alternative for workers without without four-year college degrees.  In addition to job listings, Jobcase also provides forums where people ask questions and share advice.  The site currently has 48 million members, and around 1 million new people visit it each month.

Today’s News & Commentary—January 6, 2016

In the lead up to next week’s oral arguments in Friedrichs v. California Teachers Association, anti-union union members are putting on a full court press. Mark Janus, the lead plaintiff in Janus v. AFSCME, voiced his opposition in the Chicago Tribune to an Illinois law requiring state workers to pay union dues or fees. Teacher Harlan Erlich, a fellow Friedrichs plaintiff, published a similar letter in the Wall Street Journal. The consistent messaging—that employees should not have to pay dues to fund political causes they don’t support—has moved politicians in “right to work” states throughout the country. Now the authors hope to sway five Supreme Court justices.

When times are rough for coal, they’re rough for coal miners too. The United Mine Workers of America Union announced a tepid victory for retired coal miners: their former employer will pay $75 million into a fund for health care benefits. The payout is significant, but only half the amount that Patriot Coal (the miners’ employer) promised the miners three years ago. After Patriot Coal’s two bankruptcies, the miners consider the $75 million agreement neither a win nor a loss, reported the Huffington Post.

How does a car manufacturer cope with the looming lack of auto ownership? Shift to self-driving cars. General Motors announced a new partnership with Lyft to develop an on-demand network of self-driving cars, following in the footsteps of Google, Tesla and Uber. But before self-driving cars swarm the streets, G.M. and Lyft plan to establish car rental hubs where people who do not own cars can pick up a vehicle and drive for Lyft to earn money, according to the New York Times. What will this mean for Lyft drivers? Read On Labor’s coverage of workers in the gig economy to learn about the potential impact.

Today’s News and Commentary–November 21, 2014

President Obama unveiled the details of his long-awaited executive action on immigration last night. The provisions directly affecting the most people are deferred deportations for (1) parents of legal residents and (2) an expanded number of undocumented immigrants who arrived in the United States as children. The President’s plan makes several other changes whose impact, though still significant, will be less widespread. Labor leaders Richard Trumka of the AFL-CIO and Mary Kay Henry of the SEIU expressed strong support for the President’s action. Some labor experts believe that the President’s action will encourage undocumented workers to unionize and to assert workplace rights, as fear of immigration-related retaliation has stymied action by these workers in the past. This will in turn benefit documented workers who stand to gain from expanded unionization and from not having to compete with undocumented workers whose working conditions fall below legal minimum standards. Empirical studies of beneficiaries of President Obama’s 2012 DACA program deferring deportation for a large group of childhood arrivals show that individuals taking advantage of DACA experienced a significant increase in economic opportunities.

Some labor advocates did express disappointment with certain aspects of the plan. Richard Trumka criticized the President’s suggestion that he would expand access to temporary visas for high-skilled tech sector workers, saying that such an action would continue to depress wages in the tech sector. And the action contained no specific protections for workers complaining of unlawful employer conduct or for farm workers.

According to a new poll from NBC News and the Wall Street Journal, a strong majority of Americans—56%—agree that the political and economic system is stacked against them. The percentage of the country holding this view has steadily risen since 2002, when only about a third of Americans felt this way. This sentiment crosses lines of political party, race, age, work type, and retirement status. The wealthy and people holding advanced degrees account for the bulk of Americans who do not feel the system is stacked against them.

The Senate HELP Committee conducted a hearing yesterday addressing the confirmation of Lauren McFerran to replace Nancy Schiffer on the National Labor Relations Board when the latter’s term expires on December 16, 2014. Outgoing Committee Chair Tom Harkin, a Democrat from Iowa, offered high praise for McFerran and for Sharon Block, whose nomination President Obama withdrew in the face of strong Republican opposition. Harkin expressed his desire for McFerran’s speedy confirmation. At the hearing, ranking member and soon-to-be chair Lamar Alexander, a Republican from Tennessee, criticized Block and touted a bill introduced by himself and Mitch McConnell that would weaken the NLRB. Harkin has said that he expects the Committee to vote on advancing McFerran’s nomination to the full Senate sometime after Thanksgiving.

According to the Wall Street Journal, Scott Walker and John Kasich, two prominent anti-labor Midwestern Republican governors, both of whom are potential 2016 presidential candidates, have indicated that they are unlikely to pursue right-to-work legislation during their second gubernatorial terms. Continue reading