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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Gorsuch’s Judicial Approach and Workplace Protection

When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

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Today’s News & Commentary — January 17, 2017

Donald Trump’s nominee for Labor Secretary, Andrew Puzer, may be having second thoughts about taking the job following intense criticism of his nomination.  CNN reports that Puzder “has voiced second thoughts in recent days, because of a relentless barrage of criticism from Democrats, labor unions and other liberal groups, a business ally and GOP sources tell CNN.”  Puzder is apparently discouraged by the required paperwork and attacks on him by Democrats, organized labor and worker advocates.  At the earliest, Puzder’s confirmation hearing would be next month.  In response to the report, Puzder tweeted that he looks forward to his hearing.

Meanwhile, Trump’s plans to increase American jobs through increased American production of goods continues to generate significant skepticism.  With respect to production of iPhones, according to technology site BGR, “if iPhone factories came to the US, you can be sure that robots would be the only ones getting more jobs.”  Any increased American production would reflect that the “relative cost of skilled labor in the US and China is such that it’s cheaper to build a robot than it is to hire one US worker to replace one Chinese worker in the supply chain.”

Education increasingly defines the ability of Americans to succeed economically.  The Associated Press notes that “Americans with no more than a high school diploma have fallen so far behind college graduates in their economic lives that the earnings gap between college grads and everyone else has reached its widest point on record.”  College-educated workers have disproportionally benefited from new jobs and wage increases following the 2008-09 Great Recession, and are far more in demand by employers.  The education gap is most significant for white men, but is true across the board, and developing the skills of non-college-educated workers is critical.

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Today’s News & Commentary — November 24, 2016

Happy Thanksgiving! While many of us will be spending the holiday with family, Forbes reported that 28 percent of employees plan to spend this holiday with coworkers, an eight percent increase from 2015, according to a CareerBuilder survey.  Some of these workers may be together out of necessity.  The same survey reported that 24 percent of workers are scheduled to work today.  Employers, especially retailers, have faced criticism for scheduling workers for Thanksgiving shifts.  For a list of stores keeping their doors shut today, read more here.

In other Thanksgiving-related news, poultry workers work long hours in unusually dangerous workplaces in preparation for Thanksgiving.  These workers often spend eight to 10 hours a day working six or seven days a week in the lead up to the holiday.  Poultry processing plants have workplace injury rates 50 percent higher than the national average, and poultry workers suffer workplace-related sicknesses at seven times the rate of workers generally.  Slate published an article focusing on poultry processing plants in Arkansas and the injuries many workers at these plants face.  The article reveals substantial underreporting of workplace injuries. Read more here.

Yesterday in the Washington Post, Harold Meyerson, executive editor of the American Prospect and a former Post columnist, published a piece entitled, “Donald Trump Can Kill the American Union.”  With Republican control across the board at the national level, Meyerson suggests that Republicans can erode union protections by eliminating public sector union bargaining and enacting a right to work law at the national level.  Furthermore, if Trump confirms a conservative nominee to the Supreme Court, the Court could decide a case preventing unions from collecting agency fees from non-union workers, in a case similar to Friedrichs.  In the face of this threat, Meyerson observes a “growing appreciation by progressives, centrists and millennials of the indispensability of unions.”  He argues that unions must try and maintain their current protections while struggling to create new modes of worker representation because unions are essential for “American greatness.”

Donald Trump’s rhetoric has already affected the behavior of some workers.  The New York Times reports that immigrant workers have begun spending less money in reaction to uncertain immigration policy.  Due to its large immigrant population, an estimated 10 percent of New York City’s workers are undocumented.  The City has already begun to feel the effects of this decrease in consumer spending.  If these workers were to leave, it could have a ripple effect on the economy. Read more here.

The Safety of Taxi and Rideshare Drivers – Part 2: OSHA’s Response

This is the second part of a 2-post examination of driver safety in both the taxi and ridesharing spheres.  Part 1, which contains an extensive list of unsettling incidents that have threatened the safety of ridesharing drivers, makes it pretty clear that increasing driver safety is (or should be) a pressing concern.  This post will detail the regulatory measures that have been taken to protect taxi drivers and discuss whether similar protections would be feasible and/or beneficial in the ridesharing context. 

In the taxi cab context, OSHA has responded to these same kinds of dangers by identifying risk factors and making various recommendations.  The risk factors identified include:

  • Working with cash;
  • Working alone and in isolated areas;
  • Working at night and in poorly lit settings;
  • Working in high crime areas; and
  • Interacting with people who are under the influence of alcohol.

To help employers reduce these risks, OSHA has suggested several action steps.  Although the recommendations are “advisory in nature,” OSHA can issue citations for violations of standards, regulations, and the General Duty Clause of the OSH Act, which requires employers to furnish employees with a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to employees.

This raises the question of whether Uber, Lfyt, and other ridesharing companies should be subject to similar oversight from OSHA.

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The Safety of Taxi and Rideshare Drivers – Part 1: Heightened Concerns

This is the first part of a 2-part post.  Part 1 will highlight the heightened safety concerns that come along with being a taxi driver and examine anecdotal evidence raising similar concerns for workers who drive for ridesharing companies.  Part 2 will examine the steps that OSHA has taken to protect drivers in the taxi context and discuss whether and to what extent such measures would be helpful in increasing driver safety in the ridesharing context.

Relatively speaking, earning a living as a taxi driver is a dangerous endeavor – the homicide rate for cab drivers is about 30 times higher than the national homicide average for all workers.  In fact, according to Bloomberg, taxi driving is the occupation with the largest number of deaths due to violence, higher than both police officers and security guards.  Between the years of 1994 and 2013, an average of 34 cab drivers were murdered on the job every year.  From 1998 to 2007, the homicide rate for drivers ranged from 9 to 19 deaths per 100,000 workers, putting it at 21 to 33 times that of the national average (0.5 deaths/100k).

Yet still, as of January 2015, there were 239,900 people working as taxi drivers nationwide.  In New York City, where there are about 42,000 taxi drivers, 180 drivers have been killed since 1990.  To put that number into perspective, that averages out to more than 2 NYC drivers murdered per month, every month, since 1990.  That is jarring.

The aforementioned statistics alone illustrate the perilous nature of driving a cab.  Yet those numbers don’t even account for the thousands of other crimes that are committed against taxi drivers annually – battery, assault, robbery, carjacking, and threats of violence.  Although national statistics are elusive, a snapshot of such crimes in Chicago illuminates the seriousness of the problem.

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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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