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 — February 20, 2017

A former Uber engineer, Susan Fowler Rigetti, penned a brave blog post yesterday detailing her repeated sexist treatment while working for the ride-hailing company. She writes about being harassed; how she and other women engineers were discriminated against; and how Uber’s management and human resources were not just unresponsive, but actively fought back against her. The New York Times and Wall Street Journal report how, later yesterday, Uber CEO Travis Kalanick announced that the company would be launching an investigation into the allegations.

In the Washington Post, Jared Bernstein reminds us why the Department of Labor is so important in today’s times. Specifically, Bernstein talks about the “fissured workplace,” the term coined by David Weil to describe an increasing distance between employers and workers due to franchising, subcontracting, and outsourcing. This reality led the Department of Labor’s Wage and Hour Division—which was run by Weil during the Obama Administration—to be more proactive about monitoring FLSA violations. Furthermore, such a “fissuring” places renewed importance on divisions within the department like OSHA.

Acquisitions and sales are adding to worker tensions overseas. McDonald’s may sell its Hong Kong and China operations to a large franchisee, which the Hong Kong Federation of Trade Unions warns may affect worker pay. Currently most workers earn just above the current minimum wage in Hong Kong—roughly $4.20 per hour. In the UK, General Motors may sell their Vauxhall business to the French car company PSA, according to Reuters. The purchase is being influenced by “overcapacity at existing sites, Britain’s move to leave the European Union and pension liabilities,” prompting talks with trade unions.

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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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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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 — March 24, 2016

Yesterday, the Labor Department released its long-awaited persuader rule, requiring public disclosure of any consultants employers hired to help persuade workers not to form a union or support a union’s collective bargaining position, the New York Times reports.  Labor Secretary Thomas Perez explains the rule is necessary because in about 75% of organizing campaigns, employers hire such consultants, or “persuaders,” and workers are frequently unaware of who is trying to sway them about their labor rights.  Although disclosure of such consultants is already required by the Labor Management Reporting and Disclosure Act (LMRDA), the Labor Department argues pervious administrations allowed an enormous loophole exempting consultants with only indirect impact on employees, coaching supervisors on how to influence workers, but not interacting with them directly.  The new rule would require disclosure in government filings of any consultant hired for this purpose, as well as the fees involved.

Some opponents of the rule argue the fee disclosure requirement would discourage employers from seeking legal advice that often ends up benefitting the employees.  Reuters reports several business groups, including the International Franchise Association, said yesterday they would probably sue over the rule.  The rule will be published today and will apply to agreements made after July 1.  You can read the Labor Department’s persuader rule fact sheet here.

This morning, the Labor Department will also unveil its silica rule, which will drastically lower the permissible exposure limit to crystalline silica.  According to Politico, this rule was 45 years in the making.  Crystalline silica is found in rocks and sand, and, when inhaled as dust, can lead to silicosis and lung cancer.  According to the CDC, over 2,000 Americans have died from silicosis this century.  The silica rule will be costly–OSHA estimates that the construction industry alone will have to spend $511 million each year to implement it (the industry claims the real cost is $5 billion)–but, when balanced against monetary benefits from reduced mortality and disease, OSHA figures a net benefit of $2.8 to $4.6 billion.

In minimum wage news, a proposal to raise California’s minimum wage to $15 qualified Tuesday to appear on the statewide november ballot, the Associated Press reports.  California’s current minimum wage is $10 an hour; the measure, backed by California’s SEIU West, would raise it by $1 each of the next five years.  In New York, Governor Andrew Cuomo said he would consider phasing in a $15 minimum wage over six years for the state, according to Politico.  In Washington, D.C., Mayor Muriel E. Bowser called for increasing the city’s minimum wage to $15 by 2020, the Washington Post reports.