News & Commentary

July 23, 2019

Ryan Gorman

Ryan Gorman is a student at Harvard Law School.

Yesterday, the Department of Labor’s Wage and Hour Division (WHD) released an opinion letter concluding that the time long-haul truckers spend sleeping in the berths of their vehicles is presumptively off-duty and not compensable. The opinion reverses earlier WHD guidance which had limited the amount of driver sleeping time that employers could exclude when determining whether they had satisfied their obligations under the Fair Labor Standards Act. Opinion letters such as these shield employers from liability if the conduct at issue is challenged in court, even if a court disagrees with WHD’s conclusions. Former Department of Labor Secretary Alexander Acosta had reinstated the practice, which had been discontinued by the Obama administration. Sharon Block has written here criticizing the practice of opinion letters. The sleeping berth opinion letter comes less than a month after reports that the Department of Transportation was planning to relax regulations limiting the number of hours truckers could spend driving during a certain interval of time. The opinion letter also comes amid continued concerns that the nomination of Eugene Scalia to head the Department of Labor (following Acosta’s resignation from the position) will lead to further erosion of pro-worker regulations. Annie had more to say on Scalia’s nomination last week.

Monday saw tens of thousands of people in Puerto Rico flood the streets of San Juan to demonstrate against the island’s governor, Ricardo Rosselló. Trade unions across the island had called for a general strike as part of the protests. The demonstrations were sparked by the leak of sexist and homophobic text messages between Rosselló and various of his aides. As of this writing, Rosselló remains in office. Puerto Rico is no stranger to activism, especially activism driven in part by the territory’s labor forces. Last year, workers from across the island joined together to strike in opposition of newly introduced austerity measures. In 1998, Puerto Rican labor unions joined forces to organize a massive general strike which brought much of the island’s commerce to a standstill. An estimated 500,000 workers participated in the strike, which was organized in support of telephone company workers who had walked off their jobs in protest of the government’s decision to privatize the state-owned telephone company. The general strike lasted forty-eight hours. The telephone workers continued their own strike, which lasted a total of 41 days before ending with only qualified signs of success.

Bernie Sanders’s presidential campaign remains mired in a controversy over field staff salaries. The unionized campaign organizers are demanding higher salaries that they argue would be equivalent to a $15 per hour minimum wage, given the hours they spend in the field. While one could ask whether the story (“unionized workers fight for better wages”) is really all that much of a story, Sanders’s critics wasted no time jumping on the issue, especially after Sanders announced he would cut hours to ensure field staff are paid $15 per hour. Workers in Sanders’s campaign aren’t the only ones seeking to assert their rights on the campaign trail. Elizabeth Warren’s campaign is in the middle of negotiations with staff who have decided to unionized. Warren, who has also come out in favor of a $15 per hour minimum wage, reportedly claims that negotiations are going well.

Yesterday, the Fifth Circuit held that whether or not an arbitration agreement authorizes class arbitrations is a “gateway” issue that the court, rather than the arbitrator, must decide (absent unmistakably clear contract language to the contrary). The opinion in 20/20 Communications Inc. v. Crawford aligns with the holdings of all other circuits to have considered the issue. After finding that class arbitrability was a gateway issue, the Fifth Circuit went on to hold that the contract authorized only individual arbitrations, explicitly barring class arbitrations to the maximum extent permitted by law.


Enjoy OnLabor’s fresh takes on the day’s labor news, right in your inbox.