Today’s News & Commentary — April 6, 2017

The Department of Labor has once again delayed the implementation of the Obama Administration’s “Fiduciary Rule,” previously slated to take effect on April 10. According to Forbes, the DOL has responded to President Trump’s February 3 executive order to review the rule by postponing the rule’s implementation until June 9. The comment period on issues raised by President Trump remains open until April 17.

Law360 reports that U.S. District Judge Cathy Seibel denied conditional certification to a nationwide class of Papa John’s International Inc. delivery drivers in Durling, et al. v. Papa John’s International, Inc., Case No. 7:16-CV-03592 (CS) (JCM) (S.D.N.Y. Mar. 29, 2017). The drivers alleged that the company failed to sufficiently reimburse them for the cost of their vehicle expenses. The court reasoned that the absence of any evidence of common policy that violates the FLSA is enough for employers to defend their pay practices, noting that evidence of underpaid workers at few dozen corporate stores and two franchisees is insufficient to certify a class comprised of more than 3,300 restaurants.

The Office of Federal Contract Compliance Programs (“OFCC”) released its 2017 Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark of 6.7%. Federal contractors use this figure to evaluate their veteran hiring efforts. This year’s benchmark is slightly lower than 2016’s Benchmark of 6.9%.

As noted on the blog, five women have received settlements totaling $13 million following accusations of sexual harassment by Bill O’Reilly. The revelation sparked an online conversation under the hashtag #droporeilly under which an outpouring of women have described years of workplace mistreatment. The New York Times shares some of these narratives.

A Truly Green Economy

President Trump has already declared his intention to go down in history as the “greatest jobs producer God ever created.”   He has promised to create 25 million new jobs by 2027.   Since taking office, Trump has made clear that two of the industries he plans to focus on for job creation are coal and manufacturing. Trump has cited his belief that American manufacturing and coal industry jobs are the “backbone of our economy” as the impetus behind his focus on revitalizing these types of jobs.  Now that he’s in office, he is increasing his efforts to revitalize these struggling sectors.  However, Trump is operating in a myopic state that ignores the need for American workers to shift to jobs into emerging sectors, particularly sectors that are relatively more resistant to automation than are manufacturing jobs.

Manufacturing jobs have declined as a percentage of the U.S. workforce while overall U.S. manufacturing output has increased.  The loss of jobs points as much to automation as it does jobs moving to less expensive markets like China or Mexico.   Jobs in coal are likely to continue to disappear as they have been for the last 30 years as a result of alternative, cleaner and affordable fuels entering the market. Instead of – or, at least in addition to – focusing on struggling industries, Trump should look to ease job creation in emerging industries.  One such industry that is steadily on the rise was recently flagged as one that his administration may look to quash: legalized marijuana.

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Today’s News and Commentary — March 28, 2017

President Trump repealed a rule yesterday requiring federal contractors to disclose labor law violations.  Per The Hill, the “blacklisting rule” implemented by President Obama was intended “to prevent the government from contracting with businesses responsible for wage theft or workplace safety violations at any point within the last three years.”  Business groups supported the rule’s repeal, while other commentators noted the repeal could contradict Trump’s stated promises to working-class voters of improving job prospects and working conditions.

Another action by President Trump is frustrating efforts by employers to find seasonal workers.  NPR reports that “a cap will soon kick in on the number of short-term work visas provided under the H-2B program, which brings in low-skilled labor for nonagricultural jobs that U.S. employers say they can’t fill closer to home.”  The cap particularly disadvantages employers in the Northern United States, where the demand for seasonal workers begins later in the year.  A bipartisan group of senators has called for an audit of the HB-2 program to ensure the maximum number of visas are awarded, while progressives have noted problems with the program.  For his part, President Trump has espoused opposition to hiring foreign workers but has hired dozens of foreign workers under the HB-2 program at his hotels and resorts.

Universities continue to oppose efforts by graduate students to unionize.  Most recently, The Cornell Daily Sun notes a series of questionable anti-union communications by Dean Barabara Knuth of the Cornell Graduate School through an online forum.  In particular, “the Ask a Dean forum has been a breeding ground for conflict.  Administrators claim they are addressing legitimate concerns from students — who are always anonymous — while union organizers claim that it is the University’s method of circumventing the agreement reached between the two sides in May that prevents professors or administrators from trying to persuade graduates to vote ‘no.'”

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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 — 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.

The Current State of Overtime

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.

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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.”