Today’s News & Commentary


Published December 12th, 2018 - 12.12.185


Yesterday, the National Labor Relations Board announced that it will extend the deadline for receiving public comments on its proposed joint-employer rule until at least January 14.  Under the proposed rule, a company would be deemed a joint employer of another company’s employee only if it controls the “essential terms and conditions” of employment, such as hiring, firing, discipline, supervision and direction.”  The rule also requires a joint employer to exercise control that is “substantial, direct and immediate” as opposed to that which is “limited and routine.”  If adopted, the rule would replace the current Browning-Ferris test, under which a company may be a joint employer even if it only exercises indirect control over a worker.  According to a study released by the Economic Policy Institute, the NLRB’s proposed rule will cost workers an estimated $1.3 billion per year by making it more difficult for contingent and contract workers to bargain with the companies that actually control the terms and conditions of their employment.

The NLRB also announced on Friday that it would speed up its handling of labor disputes by twenty percent over the next four to five years.  The Board’s FY 2019-2022 Strategic Plan calls on agency personnel to increase their case handling speeds by five percent for each of the next four years.  The aim is to decrease the length of time it takes to process an unfair labor practice charge from the current 106-day average to a target of 85 days. NLRB General Counsel Peter Robb noted that it took between 44 and 55 days to resolve a labor dispute in the 1980s, and called the increased processing times a “disturbing trend.”  However, the Board currently employs fewer than half of the 3,000 employees that it had on staff in the 1980s.

The D.C. Circuit heard oral arguments on Monday as it considered whether to uphold or strike down a series of federal court injunctions blocking the Trump administration’s ban on transgender people in the military.  Attorneys from GLAAD and GLBTQ Advocates and Defenders argued that the ban is “rooted in discrimination against a group of individuals” because it bans “only transgender people and all transgender people . . . .”  The Department of Justice countered that the order is Constitutional, within the military’s discretion to set entrance and retention standards, and only prevents those who have been diagnosed with gender dysphoria, a DSM-5-classified mental health condition, from serving.  A panel of judges questioned the groups seeking to uphold the injunction on why the court should not show deference to the military on combat readiness decisions, but suggested that the DOJ’s argument that the policy would not, in effect, result in a total ban on transgender people in the military was unrealistic.  Several military leaders have signaled their opposition to the Trump administration’s policy since it was announced in March.

After more than 64 bargaining sessions, student workers at The New School voted 260–33 in favor of approving a new labor contract with the school’s administration on December 3.  The new contract, which is valid until August 31, 2023, provides the student workers with wage increases, signing bonuses, health insurance discounts, fee waivers, and protection against workplace safety issues.  The university announced that it was “pleased to have reached an agreement with SENS-UAW on a strong, fair, and equitable contract . . .” while the SENS-UAW bargaining committee framed the victory as part of “a bigger movement that is happening throughout the United States.”

According to The New York Times, the American economy has grown so dependent on the labor of its eight million undocumented immigrants, who account for some five percent of the workforce, that a successful crackdown on illegal immigration would have devastating effects on the broader economy.  According to Giovanni Perri, an economist at the University of California, Davis, the end of illegal immigration “definitely would trigger a recession” as companies in the construction, agriculture, and service industries shuttered their doors due to staffing issues.  Undocumented workers are primarily employed in low-skilled jobs that employers have had trouble filling with American workers, including farming, construction, and child care.  The Times report comes after revelations that President Donald Trump, who has spent his first term attempting to curb unauthorized border crossings, employed at least four undocumented immigrants at a golf club in New Jersey.  Trump is not the first U.S. politician to be called out for employing undocumented workers.

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