Today’s News & Commentary — March 1, 2019


Published March 1st, 2019 - 03.01.198


The Department of Labor is close to passing a new overtime law, reports Bloomberg.  Under the proposed regulation, which would update federal overtime requirements for the first time in 15 years, workers who earn less than $35,000 per year will automatically be eligible for overtime pay.  The proposal is higher than the current $24,000 threshold, but falls short of the $47,000 threshold proposed by the Obama administration in 2016.  That proposal was struck down by a federal court in Texas for allegedly focusing too much on salary.  The new rule will certainly expand the number of employees who qualify for time-and-a-half, but many worker advocates argue that it does not nearly go far enough.  Heidi Shierholz of the Economic Policy Institute writes that the “new rule would leave behind millions of workers who would have gotten overtime protection under [the Obama administration’s] proposed guidelines” and points out that even that proposal would have reached far fewer workers than have been covered historically.  At the same time, employers and their lawyers argue that increasing the overtime threshold will require businesses to cut jobs and have vowed to challenge the DOL’s authority to pass such regulations based on salary alone.

Senator Richard Blumenthal and Representative Hank Johnson are co-sponsoring a bill that would prevent companies from enforcing mandatory arbitration agreements against their employees.  The Forced Arbitration Injustice Repeal Act would also bar mandatory arbitration clauses in civil rights, consumer, and antitrust claims, and would ban agreements containing class action waivers.  Senator Blumenthal explained the motivation behind the FAIR Act: “[o]ne of the systems that is truly rigged against consumers and workers and the American people is our current system of forced arbitration. Forced arbitration is unfair, unjust, un-American.”  Employees at Google, who got their company to end forced arbitration after months of advocacy, immediately rallied behind the bill.

Uber and Lyft are reportedly considering giving their drivers the ability to buy stock when the companies go public later this year.  Both ride-sharing companies plan to implement programs whereby long-term, active drivers are given cash awards that can be redeemed for stock in their respective IPOs.  For Uber, the value of the award will be tiered based on drivers’ length of service and number of rides.  Lyft will give a $1,000 cash reward that can be redeemed for stock to drivers who have logged a minimum of 10,000 rides or $10,000 to those who have logged 20,000 rides.  Either way, Lyft expects that only a minority of its drivers will qualify.  The companies are relying on the cash-for-stock scheme due to securities laws that prevent companies from giving private shares to independent contractors.  Some Uber and Lyft drivers expressed displeasure with the stock plans, calling them a “token gesture” and a “slap in the face.”

On February 27, four current members of the National Labor Relations Board held a panel discussion at an American Bar Association meeting in Santa Monica, California.  As Law360 reports, Chairman John Ring and the other members of the Board’s Republican majority sparred with Lauren McFerran over several recent cases, including Supershuttle, in which the Board revised its independent contractor test, and the Browning-Ferris line of cases regarding the joint employer standard.  The Board’s Republican majority also announced that it was considering issuing regulations on workers’ rights to engage in union activity on the private property of employers.  Meanwhile, NLRB General Counsel Peter Robb spoke in favor of a rule requiring unions to inform prospective members of how much they would have to pay in dues and fees if they choose not to be full dues-paying members.  Robb’s proposed rule would require unions to inform prospective members of “the amount of savings that would result from [a decision to join or not join a union.]”

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