Today's News & Commentary — March 17, 2016


Published March 17th, 2016 - 03.17.1632


How might — and how should — a Supreme Court including Merrick Garland rule in labor and employment cases? For analysis of Chief Judge Garland’s labor decisions and positions, see here. For one commentator’s view of how the next Justice should approach judicial review of NLRB decisions, see here, and for discussion of what replacing Justice Scalia could mean for workers, see here.

CNNMoney reports that the Teamsters, along with five Lyft drivers, have objected to the proposed settlement reached in the employee misclassification class-action suit against the company. The settlement would have paid out over $12 million and prohibited Lyft from terminating drivers without case, but it did not require the company to classify its drivers as employees. And that classification, Teamsters representatives argued, is more important than any short-term economic benefit: “That would empower them to organize and collectively bargain over their rates and company policies, including what happens when a worker gets terminated,” said one union official. Shannon Liss-Riordan, the attorney who filed the Lyft suit, and who is also behind similar litigation pending against Uber, acknowledged that she would have liked to win employee status for drivers, but that the odds were stacked against her: “Unfortunately, the Supreme Court has allowed companies to avoid employment-related and other class actions through the use of arbitration agreements, and in this case (unlike the Uber case) we believe our odds of overcoming the arbitration agreement were slim.”

Goodbye, premium pay on Sundays. Lydia DePillis of the Washington Post examines Walmart’s decision to cease offering premium pay to employees working Sunday shifts — a move that follows an industry-wide trend to discontinue the practice. Whereas state laws and a tight labor market once demanded Sunday premium pay, most states have now stricken those laws from their books. The trend has been further spurred by changes in shopping habits (retail shopping increasingly takes place on weekends), workers’ loss of control over their schedules, and “the [receding] importance of Sunday as a universal day of rest.” Now, Massachusetts and Rhode Island stand alone in requiring retailers to pay their workers more to work on Sunday, but “the retail industry is pushing hard to get the requirement rolled back in Massachusetts.”

DePillis also explores the increasingly rocky political terrain upon which the Trans-Pacific Partnership stands. DePillis notes not only that respective primary frontrunners Hillary Clinton and Donald Trump have both come out against the trade deal, but also that “[Clinton], [Bernie] Sanders, and Trump have focused their fire on how past trade deals have impacted manufacturing in states like Michigan, which have suffered in the most obvious ways from offshoring over the years.” Although business leaders have expressed their “disappoint[ment] in the extent to which candidates are hardening their positions on trade, and weaponizing trade as a political issue,” they also appear to recognize that “bashing trade is an effective political tactic at a time when many Americans are feeling economically insecure.” Some have also expressed optimism that what candidates say during the primaries may not reflect what they will do when in office: “At election time, the talk can be pretty negative, and later we end up being able to get things done,” said the president of one business industry group, who further noted Bill Clinton’s initial opposition to NAFTA. However, DePillis observes that “this election might be different,” given the potential for anti-trade rhetoric to “bleed down into congressional races.”

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