Today’s News & Commentary — June 20, 2019


Published June 20th, 2019 - 06.20.199


Two decades after its introduction, the Farmworkers Fair Labor Practices Act passed both the New York State Assembly and Senate yesterday.  The bill guarantees farmworkers collective bargaining rights, workers’ compensation, and unemployment benefits, and also provides for overtime pay for work in excess of 60 hours a week.  Governor Cuomo has indicated he will sign the bill into law.  Over eighty years ago, federal lawmakers carved agricultural workers out of the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) to win the support of southern Democrats, who resisted granting labor rights to a primarily black workforce.  But that dark history has a silver lining: because agricultural workers are explicitly exempted from the NLRA and there is no evidence Congress intended to foreclose state regulation of collective bargaining by agricultural workers, the New York law can survive both Garmon and Machinists preemption challenges.

New York lawmakers also passed a bill making significant changes to the state’s workplace sexual harassment protections.  The measure eliminates the “severe or pervasive” requirement that has proven a high bar for plaintiffs.  It also downgrades the Faragher-Ellerth defense from an affirmative defense to a standard defense, meaning that employers can still argue they should escape liability when employees do not report harassment, but a worker’s failure to report will not end the case before it starts.  Further strengthening protections, the bill extends the statute of limitations for sexual harassment claims from one year to three years.

The U.S. Chamber of Commerce has “come out” in favor of the Equality Act, a bill that would amend the Civil Rights Act of 1964, among other federal civil rights laws, to add sexual orientation and gender identity to the list of protected classes.  Bloomberg Law explains that the Chamber’s stance comes “[a]fter decades of silence on issues of sexual orientation and gender identity,” even while many of the organization’s corporate members have become outspoken supporters of LGBTQ rights.  The AFL-CIO first endorsed a federal nondiscrimination law for sexual orientation in 1979.

The National Employment Law Project (NELP) released a report detailing how the Trump administration has doubled the federal government’s use of temporary staffing agencies to perform traditional public functions.  The report found that the primary outsourcing culprit is the privatization of government healthcare services provided by agencies like the Veterans Administration, the Indian Health Service, the Department of Defense, the Bureau of Prisons, and the Federal Occupational Health clinics.  Explaining how the use of temp agencies increases costs to taxpayers while reducing job quality for workers, the report calls on the government to regularly review and audit temp agency contracts and to set higher labor standards for the workers they employ.

The Verge published a harrowing exposé of working conditions inside a Facebook online content moderator site in Tampa, Florida.  The article describes an uncleanly and psychologically demanding office environment managed for Facebook by a third-party vendor.  Workers who spoke on the record in the piece allegedly broke the fourteen-page nondisclosure agreement that the company requires all contractors to sign.  Meanwhile, around 50 employees who work for the bike share contractor at Facebook’s California headquarters are voting today on whether to unionize with the Transport Workers Union (TWU).  The organizing effort has faced a fierce union avoidance campaign from the workers’ direct employer Bikes Make Life Better.  TWU already represents a number of other bike share workers across the country.

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