In today’s news and commentary: a Department of Labor memo on subminimum wages for workers with disabilities; a Fifth Circuit decision that that COVID-19 does not exempt employers from giving notice to employees before mass layoffs; AFL-CIO convention resolutions on diversity and youth engagement; and more!
On Thursday, the Department of Labor issued a memo with new guidance for its Wage and Hour Division regarding enforcement of Section 14(c) of the Federal Labor Standards Act (FLSA), which allows businesses to pay less than the federal minimum wage to workers with disabilities. In 2015, 14(c) was amended by Congress to impose additional requirements on paying the subminimum wage to individuals under the age of 25: before they can begin work that is compensated at a subminimum wage, the employer must have completed and produced documentation indicating completion of transition or pre-employment services, documentation of demonstrated ineligibility for vocational rehabilitation services, and evidence of having completed appropriate career counseling services. As the DOL memo notes, these preconditions must be met. The guidance offers some details and clarification on what constitutes compliance with these requirements, and notes that the DOL will pursue claims for back wages for workers who had been paid the subminimum wage by employers who were not compliant. The guidance comes just after the DOL sued a Montana company for paying 35 of its workers below the minimum wage, some as low as $1.17 an hour. The DOL investigation determined that the company alleged to have offered workers training and counseling as required, without actually doing so.
On Wednesday, the Fifth Circuit determined that COVID-19 does not qualify as a natural disaster exempting employers from giving notice to employees before mass layoffs under federal labor law. Under the Worker Adjustment and Retraining Notification Act (WARN Act), employers must generally “give affected employees sixty days’ notice before a plant closing or mass layoff.” Under certain circumstances, however, this requirement is waived—one of which is where the closing or layoff resulted from a “natural disaster, such as a flood, earthquake, or the drought currently ravaging the farmlands of the United States.” Applying the noscitur a sociis cannon, the Fifth Circuit found that “Congress intended to limit ‘natural disaster’ to hydrological, geological, and meteorological events.” The court also noted that since the examples did not include mention of disease or pandemic, the expression unius cannon counselled in favor of the more limited reading.
At the AFL-CIO convention this week, in addition to the proposal to organize 1 million new members which Jason discussed on Wednesday, the AFL-CIO named diversity and engagement with young people as some of its key priorities. The federation passed a proposal to redouble engagement with young workers. The proposal, which passed unanimously, commands the federation to engage with high school students through apprenticeships and the promotion of collective bargaining. The federation also passed a proposal to dedouble its efforts to promote a pathway to citizenship for undocumented immigrants, which Albuquerque Educational Assistants Association president Kathy Chavez called the most pressing issue crying out for resolution. The AFL-CIO also passed resolutions extending its commitments to racial justice, healthcare reform, voting rights and more. The federation also reaffirmed its commitment to fighting for labor law reform, including that “no candidate or elected official who fails to endorse and fight for these fundamental reforms should receive the support of working people.” The AFl-CIO’s adopted convention resolutions can be viewed here.
The Supreme Court also decided on Wednesday that the Federal Arbitration Act (FAA) preempted part of California’s Private Attorney Generals Act (PAGA), which allowed employees to sue over workplace violations on behalf of the State. However, there is room for California courts or state legislators to restore the act. For more, see Anita’s explainer yesterday titled Viking River: Understanding What the Court’s Newest Arbitration Case Does to PAGA (and How California Can Fix It).
Today also marked the kick-off of the 2022 Labor Notes conference, drawing in a record-breaking 4,000 union activists from across the country to participate in about 200 workshops and sessions. Special speakers at the conference including Senator Bernie Sanders, President of the Amazon Labor Union Chris Smalls, President-elect of the Chicago Teachers Union Stacey Davis Gates, and Association of Flight Attendants-CWA President Sara Nelson. You can register to attend the conference’s main sessions virtually here.