Today’s News & Commentary — June 6, 2019


Published June 6th, 2019 - 06.06.195


In the ongoing case of Chamber of Commerce v. City of Seattle dealing with the legality of Seattle’s for-hire vehicle driver collective bargaining ordinance, the Chamber and co-plaintiffs moved for summary judgment in February, arguing that the ordinance is preempted by federal antitrust law.  The City of Seattle and co-defendants then sought discovery to gather facts to oppose the motion.  On Tuesday United States District Judge Robert S. Lasnik granted the defendants limited discovery to gather evidence showing that the labor exemption to federal antitrust law applies to the for-hire vehicle drivers and that the for-hire vehicle services themselves require “coordinated driver conduct” to operate, making antitrust law inapplicable anyways.  Judge Lasnik characterized the defendants’ argument that the labor exemption applies as “not frivolous.”  In an accompanying footnote, he explained that the Clayton Act exempts the “labor of a human being” from antitrust regulation, which could be read to encompass both employees and independent contractors, especially in light of the Supreme Court’s January decision in New Prime, Inc. v. Oliveira.  In that case, the Court observed that “employment” as understood when the Federal Arbitration Act was passed in the early twentieth century included both employer-employee and independent contractor relationships.  Judge Lasnik stated that “employment” is a “narrower term” than “labor of a human being,” suggesting that the Court’s broad understanding of the definition of “employment” in the Federal Arbitration Act commands an expansive reading of the labor exemption in the contemporaneous Clayton Act.

Yesterday the Washington State Department of Labor & Industries issued a proposed rule that would extend overtime protections under state wage-and-hour law to an estimated 250,000 additional workers by 2026.  Under the rule, employers with 50 or fewer employees would need to pay workers about $35,000 a year and larger employers would need to pay workers about $49,000 a year in order to not owe those workers overtime pay.  The existing Washington State wage-and-hour law salary threshold for overtime exemption is only $13,000, while the federal threshold under the Fair Labor Standards Act is about $24,000.  The Department of Labor under President Obama sought to raise FLSA’s threshold to $47,476 for full-time employees, but a federal district court struck the rule down.  The Department of Labor under President Trump has issued a new proposed rule to raise the salary threshold for overtime exemption to $35,308.

Writing in The American Prospect, Terri Gerstein and Heidi Shierholz call attention to major flaws in a recent report from the Chamber Institute for Legal Reform touting the benefits of employment arbitration.  First, they note that the report’s litigation data fails to include class actions, in which groups of workers have often won major recoveries, as well as lawsuits in state court, where outcomes for workers are typically more favorable.  Instead, the report only compares the results of public available individual employment litigation in federal court to the results of publicly available individual employment arbitrations.  Second, they explain that the report fails to account for the workers who choose not to bring claims at all as a result of being subject to forced arbitration.  Other criticisms include the report’s failure to reference previous studies on the issue and its focus on the average rather than median arbitration award.

Sara Nelson, international president of the Association of Flight Attendants-CWA, wrote a Pride Month piece in LGBTQ Nation yesterday detailing the intertwined history of the LGBTQ rights and labor movements.  As she explains, “[s]ome of the earliest wins for LGBTQ rights happened not in a courtroom or in a legislature, but at the bargaining table.  Years before San Francisco started issuing same-sex marriage licenses, long before Massachusetts became the first state to pass marriage equality, our union, the Association of Flight Attendants-CWA (AFA) negotiated for—and won—domestic partner benefits for every United flight attendant.”  Nelson calls on both movements to continue to lift each other up.  Meanwhile, Senator Bernie Sanders faced blowback yesterday for a Pride Month-themed tweet in which he called on companies engaged in “rainbow-branding” to actually stand up for LGBTQ workers by paying employees fairly, promoting their right to health care, and allowing them to unionize without company interference.  Commenters accused Sanders of applying an ill-suited, generic solution to the unique problem of LGBTQ discrimination.  One said that the tweet was “conflating two issues and seems to piggy back on one issue to drive home a point for another issue.”  But as a group of major LGBTQ rights organizations argued in an amicus brief to the Supreme Court in last year’s Janus case, unions have been one of the surest ways for queer people to win protections and benefits at work in the absence of statutory safeguards.

Yesterday’s Smarter Living section of The New York Times explores the history of the term “living wage” and encourages readers to calculate what it costs to cover basic expenses where they live using the Living Wage Calculator.  The piece also explains that employees covered by the National Labor Relations Act are protected when they ask coworkers about how much they make.

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