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.
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.
The New Rule
In May 2016, the Department of Labor, under the direction of President Obama, issued a final rule updating the overtime provisions of the Fair Labor Standards Act. The Department raised the minimum annual salary for employees exempt from overtime pay from $23,660 to $47,476. The Department set December 1, 2016 as the effective date for the new rule, implementation of which would have affected over 4 million employees.
Underlying the new overtime rule is the desire to protect workers from being over-worked and under-paid. As the United Food and Commercial Workers union stated in 2015, the previous threshold of $23,660 is below the poverty line, and reflects only one salary threshold increase since 1975. As long as employers could classify their workers as “managers,” they could avoid paying them overtime. The new rule would have required employers to either raise the salaries of low-level managers to meet the $47,476 threshold, or reclassify them as hourly employees entitled to overtime pay. It was intended to encourage employers to spread employment, and hire multiple workers to perform a job rather than forcing a single worker to work 70 hours a week. Critics argue the rule would hurt small businesses and reduce jobs.
As many employers were making changes to come into compliance with the new rule by the approaching December 1 deadline, a federal judge in Texas ordered a preliminary injunction barring nationwide enforcement of the rule. A number of private business groups and 21 states had challenged the rule as an overreach of executive power. The district judge agreed, claiming Congress, not the Department of Labor, should be responsible for making changes to the minimum salary requirement.
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.”
We still have a lot to learn about Alex Acosta, Donald Trump’s new nominee for Labor Secretary, but one case he ruled on during his brief stint at the National Labor Relations Board suggests that, not surprisingly for a Trump appointee, he is likely to favor employers over workers when faced with a close question. In Alexandria Clinic, P.A., a 2003 case, Acosta, joined by two other Republican Board members, overruled a twenty-four year old precedent to uphold the firings of 22 licensed practical nurses who were fired for striking at the health care clinic where they worked.
The National Labor Relations Act provides that unions must give health care institutions at least ten days’ notice before striking, and the notice must state “the date and time” the strike will commence. The Act further provides that an employee loses her status as an employee if she strikes “within” the notice period. In this case, the union provided ten days’ notice of its intent to strike on September 10 at 8 a.m. After the notice went out, the nurses decided that it would be less disruptive for patients if they struck at 11:45 a.m., instead of 8 a.m., and so they decided to begin their strike at 11:45. The employer was well-prepared to weather the strike, as it had temporary nurses standing by to replace the nurses as soon as they went out. There was no finding that any patient was harmed as a result of the strike.
Among the executive orders and presidential memoranda issued by the Trump White House during its inaugural weeks in power, the order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” — colloquially known as the “travel ban” or “Muslim ban” — stands out for the degree of political and legal fire that it has drawn.
Issued on January 27, the travel ban immediately barred citizens from seven Muslim-majority countries from entering the U.S. for 90 days, purportedly to provide the Department of Homeland Security with time to review immigrant vetting procedures. It also imposed restrictions on refugee entry into the U.S.
Of the dozens of lawsuits filed against the travel ban, the challenge brought by Washington and Minnesota — Washington v. Trump — has gone furthest toward striking it down. On February 3, the Seattle-based federal district court judge hearing the lawsuit issued a nationwide temporary restraining order (TRO) against the ban’s enforcement, a decision upheld by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. In response to the panel’s decision, the Trump Administration is currently revising the ban.
Despite national interest in the travel ban’s legality, however, the news coverage and online commentary about Washington v. Trump have largely overlooked a key feature of the states’ case: the travel ban’s purported effects on their labor markets as the bases for their injuries.
President Trump delivered his first address to Congress last night, in which he called again for increased spending on infrastructure projects and efforts to increase the number of manufacturing jobs in the United States. No details of these plans were provided, though unions and businesses have begun lobbying to secure portions of the predicted infrastructure package. A meeting with television news anchors before the speech partially overshadowed the event, though, with Trump apparently indicating some willingness to discuss an immigration compromise that would allow many undocumented workers to remain in the country.
The Los Angeles Times reports on the growing number of restaurants introducing automated ordering or production to reduce labor costs, including Wendy’s, which just announced that more than 1,000 restaurants will receive self-service kiosks by the end of 2017. The chain’s chief operations officer called the installations an initial step in replacing “repetitive production tasks” with automated systems.
In other news from Washington, as part of an effort to promote job growth through the reduction of regulations, the Trump administration ordered the EPA to begin rolling back an Obama-era regulation that had subjected a number of previously exempt waterways and wetlands to additional pollution standards. Businesses, especially farmers and developers, had objected to the increased burdens the rule placed on economic activity in regulated areas, though sport fishing and hunting groups supporting the rule argue that significant economic benefits have accrued in newly clean waterways.
The teachers union in the nation’s second-largest school system reelected its president, Alex Caputo-Pearl, by a large margin yesterday. United Teachers Los Angeles called the result a clear mandate for Caputo-Pearl’s plans to fight back against school reforms supported by the Trump administration that could harm students and weaken unions through an increased reliance on private and charter schools.