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 — February 16, 2017

Employees at Boeing’s South Carolina plant voted against unionization yesterday.  The company stated that 74 percent of employees who cast votes in the election voted against the union.  The International Association of Machinists’ lead organizer, Mike Evans, released a Facebook video statement saying that the workers had determined that “at this time they don’t need representation.”  The New York Times situated this loss for the machinists in the context of other union losses in the South.  Read more here.

As reported yesterday at OnLaborAndrew Puzder has withdrawn his nomination to be the next secretary of labor.  In the aftermath, commentators are wondering what this means and who will be nominated in Puzder’s place.  Benjamin Wallace-Wells at the New Yorker suggests that Andrew Puzder’s nomination made Donald Trump’s populism “less credible” by “[giving] Democratic populists not just villainy but a villain.”  At Slate, Jordan Weissmann cautions Democrats that their victory may not be much cause for celebration.  He states, “[i]n the end, Puzder’s nomination seems to have been sunk by the combined weight of his flaws, but it’s hard to shake the sense that immigration was the decisive issue.”  Weissmann also notes that the next nominee will likely be as bad as Puzder on labor rights and worse on immigration issues.  In particular, he points to Peter Kirsanow as a likely contender.  Yesterday, White House press secretary Sean Spicer refused to discuss who would replace Puzder.

The Washington Post reports that immigrant workers in D.C. and around the country are planning “A Day without Immigrants” boycott to demonstrate the importance of immigrants in the American economy and protest President Donald Trump’s policies in this area.  Immigrants are being called on “not to attend work, open their businesses, spend money or even send their children to school.”  Trump’s recent immigration actions include an executive order released on January 25, 2017.  The order greatly increases the categories of immigrants deemed a deportation priority.  Following this executive order, there have been reports of Immigration and Customs Enforcement raids and arrests of more than 600 people across the country.  Yesterday, the New York Times highlighted the detention of Daniel Ramirez Medina, who received a work visa through the Deferred Action for Childhood Arrivals (DACA).  Medina’s detention has inflamed fears among immigrants and immigrant rights activists because President Trump has given mixed signals regarding the future of the DACA program.  While Medina has yet to be released, other DACA recipients were released shortly after their initial arrests.  Read more here.

In international news, the South African government is exploring instituting a minimum wage. Last year, a governmental panel studying the issue suggested a minimum wage of approximately $1.50 an hour, which would result in earnings of roughly $250 a month.  While this sum seems small, it is close to the median income in South Africa, a country with an unemployment rate of 27 percent.  Proponents of the measure argue that the minimum wage is a much needed step to reduce income inequality while opponents fear that it will create job loss.  Read more here.

Today’s News & Commentary — February 14, 2017

Happy Valentine’s Day!  Those celebrating should be careful not to run affront of labor and employment law.  The Richmond Times-Dispatch notes that “when a gift is received unexpectedly from a co-worker on Valentine’s Day of all days, it raises the creep level to litigation status.”  Their special correspondent advises readers to keep their celebrations out of the workplace.

Donald Trump’s selection for Secretary of Labor, Andrew Puzder, continues to face difficulties with his nomination.  According to CNN, four Republican senators – “Susan Collins of Maine, Lisa Murkowski of Alaska, Tim Scott of South Carolina and Johnny Isakson of Georgia” – are withholding support for Puzder pending his confirmation hearings.  Republican leaders will lobby the four senators, but if they cannot be swayed Trump may replace Puzder.

After a long campaign, a little over 3,000 Boeing workers in Charleston will finally vote tomorrow on unionization.  The New York Times reports that the election represents a key test of the strength of organized labor in the early days of Trump’s presidency.  Boeing was enticed to open the plant in South Carolina in large part because of reduced labor costs relative to their operations in the Seattle area, partly driven by the lack of unionization.

In other news, graduate students at colleges and universities continue to mount union organization campaigns.  Organizers and students continue to make their case at Duke University and the University of Maryland, for example.

Today’s News & Commentary — February 8, 2016

Yesterday, Republican lawmakers “proposed sweeping changes to Iowa’s collective bargaining laws” in the form of House Study Bill 84 and Senate File 213.  As the Des Moines Register explains, the new bills would limit mandatory negotiations for most public-sector union workers (public safety workers such as firefighters and police officers are exempted) to base wages only; negotiations over issues like health insurance and overtime would be prohibited.  The bills would also require unions to go through a certification process before each new contract negotiation.  Additional coverage is available at the New Republic, which also provides a brief historical overview of collective bargaining law in Iowa.

The New York Times reports that New York is attempting to revive the once-thriving, now-troubled garment industry.  City officials have increased efforts to create a new garment industry in Sunset Park, including a $115-million renovation of the city-owned Brooklyn Army Terminal, which will expand manufacturing space by 500,000 feet.  They have also partnered with the Council of Fashion Designers of America in order to assist companies with modernizing their manufacturing processes and workplaces.

Can Andy Puzder survive?  That’s the question Politico asks, noting that Puzder has faced allegations of beating his wife, began his career working for “one of the most notorious mob lawyers in the country,” and just admitted that he employed an undocumented immigrant as his house cleaner and didn’t pay taxes on her employment.  Despite these scandals, however, Puzder is “somehow . . . still standing.”

In other news, the New York Times observes that the appeals panel that heard oral argument yesterday in State of Washington v. Donald Trump “appear[ed] skeptical of Trump’s travel ban.”  The Times also notes that nearly 130 companies, most of them from the tech industry, filed an amicus brief in support of Washington State.

 

Guest Post: The Ghent System and Progressive Federalism

Matthew Dimick is Associate Professor of Law at the University at Buffalo School of Law.  He can be reached at mdimick@buffalo.edu.

Last week, the US Department of Labor released its latest union membership statistics.  In 2016, the rate of union membership among wage and salary earners—or union density—was 10.7 percent, down 0.4 percent from the previous year.  Unsurprisingly, union membership remains low, and far below its historical high point.  In 1964, for example, nearly a third of workers belonged to a labor union.

Union density is not the end-all and be-all of unionism, but it’s hard to overestimate its importance for succinctly capturing the strength of a labor movement.  Union members pay dues, are more likely to vote (and probably more likely to vote Democrat), and are more likely to participate in job actions and other tactics necessary to put economic pressure on an employer.  Even more broadly (and loftily), union membership initiates workers into an institution of community for both transcending differences (e.g., between races and genders) and developing broader, collective interests.

It’s not surprising therefore that goal number one of the labor movement has been to reverse the decades-long decline in union density.  This goal takes on existential proportions in light of the continued legal and political assaults on labor unions.  Last year, public sector unions—constituting no less than 40 percent of total union membership—dodged a bullet when the death of Justice Scalia led to a deadlocked Supreme Court in the Friedrichs case.  Had Justice Scalia lived, it is almost certain that the Court would have allowed public sector workers to enjoy the benefits of collective bargaining without having to join the union or otherwise contribute to supporting it financially.

Unfortunately, with a Trump presidency, labor supporters weren’t allowed much of a reprieve.  And given the larger political climate and vicissitudes of national labor law, this should impel the labor movement to seek out other ways of building union membership.  One of these ways, as I discuss in this post, is to adopt what is called the “Ghent system.”

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Guest Post: Collective Bargaining As We Know It Can Still Work, But It Is Not Enough

Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.

Andrew Strom takes issue with labor supporters who are “arguing that collective bargaining is dead and unions need to find something new to replace it.”  He argues that passing a series of local minimum wage ordinances “is no substitute for collective bargaining.”  He is right on both counts.  Collective bargaining is essential; and employment law cannot be a replacement for large-scale organizations that are controlled by workers.  Any reform effort that rests on an abandonment of self-funded worker-led unions should be rejected.

But a commitment to collective bargaining and to worker-led organizations should not lead one to settle for our existing system of labor relations.  As Strom himself has recognized “existing labor law makes it nearly impossible for workers to join unions.  The law also makes it exceedingly hard for workers to achieve substantial gains in bargaining.  And the difficulties are likely to get worse with the new Administration.

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Today’s News & Commentary — January 31, 2017

2017 could be a tough year for labor unions at the state level.  According to NPR, Kentucky has become the nations’s 27th “right-to-work” state, and Missouri and New Hampshire could join it in February.  New Hampshire would become the first “right-to-work” state in the Northeast.  Advocates in New Hampshire claim that “right-to-work” will entice businesses to relocate to the state, while opponents assert that “right-to-work” creates free rider problems and constitutes political reprisal against unions for supporting Democrats.

At the federal level, things might not be much better.  The Washington Examiner reports that two Republicans will introduce national “right-to-work” legislation tomorrow.  President Trump’s purported support has “right-to-work” advocates optimistic, despite previous failures in Congress.

With respect to President Trump’s agenda, unions are prepared to fight.  Per Bloomberg BNA, “labor groups representing immigrants, women, blacks, Latinos and Asian-Americans vowed collective action against President Donald Trump at a rally in Washington Jan. 27” and “[Representatives from AFL-CIO constituency groups] promised grass-roots organizing with regional union chapters to protect immigrants and union workers and to ensure sanctuary cities remain.”

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