Today’s News & Commentary — March 5, 2019


Published March 5th, 2019 - 03.05.193


A federal judge in Washington, D.C. ruled Monday that the Trump administration illegally prevented the U.S. Equal Employment Opportunity Commission from collecting more robust pay data from employers.  U.S. District Judge Tanya Chutkan found that the Office of Management and Budget’s decision to stay an Obama-era regulation providing for the collection of such pay data was arbitrary and capricious and ordered the reinstatement of the rule, which requires large employers to provide to the EEOC a breakdown of pay data by gender, race, and ethnicity.  In bringing the suit, the National Women’s Law Center and the Labor Council for Latin American Advancement stressed the importance of pay transparency in the fight to close the wage gap.  Opponents claimed, however, that the new regulation would create administrative burdens and expose companies to liability based on potential misinterpretations of their pay data.

In a 2-1 ruling, the Minnesota Court of Appeals upheld the $15 minimum wage ordinance passed in Minneapolis, finding that state law did not prevent cities from creating their own minimum wage laws and turning down arguments that the ordinance would lead to a confusing patchwork of regulations across the state.  In 2017, Minneapolis became the first Midwestern city to adopt a $15 minimum wage. The city has also passed an ordinance guaranteeing safe and sick time for all workers.

San Mateo County, Calif. is bracing for a strike by up to 915 of its employees on Tuesday and Wednesday.  The American Federation of State, County and Municipal Employees Local 829 called for the strike after failure to reach a new contract despite 27 negotiation sessions since summer.  The union represents 11 units of county employees, 10 of which have ratified a new contract. The remaining unit, which includes the county’s Human Services Agency, health department, sheriff’s office, and district attorney’s office, has chosen to strike instead.  In some positive news for workers, Boeing’s Machinists union successfully negotiated a $4-per-hour increase in the minimum wage for thousands of its members.  As The Seattle Times reports, the unusual mid-contract pay raise was worked out in response to pay disparities that arose between new hires and incumbent employees following a labor shortage in some areas.

Uber has dropped its challenge to a determination by New York state officials that the ride-hailing company was liable for unemployment insurance contributions because Uber drivers who claimed unemployment benefits qualified as employees, not independent contractors.  Crain’s New York Business reported yesterday that Uber withdrew its appeal of that finding, which applies not only to the three Uber drivers who sought unemployment benefits but also all those similarly situated.  Since 2016, Uber has thrice faced defeat in arguing that these drivers were independent contractors, rather than employees: first before the New York Department of Labor, then before an administrative law judge, and most recently before the New York State Unemployment Insurance Appeal Board.  The Board concluded in July 2018 that Uber exercised “sufficient supervision, direction or control over the three claimants and other similarly situated drivers” for the claimants and other similarly situated drivers to qualify as covered employees for the purposes of unemployment insurance.  Uber disputes that the decision is far-reaching and maintains that the holding does not extend beyond the three drivers.  Advocates at Brooklyn Legal Services and the New York Taxi Workers Alliance are now pressing the New York State Department of Labor to audit Uber to determine how much the company owes the state in employer unemployment contributions, rather than force drivers to seek benefits on a case-by-case basis.

A judge in Kanawha County, West Virginia has struck down as unconstitutional parts of the state’s so-called right to work law that allowed workers to refuse to pay dues to unions that were required to represent them.  In a 46-page ruling handed down on February 27, Circuit Judge Jennifer Bailey held that the Workplace Freedom Act violated the West Virginia Constitution in several ways.  First, the law would lead to an unconstitutional taking of the union’s property without compensation by prohibiting the union from collecting fees for services that they must provide to nonmembers.  Judge Bailey found that this “takes money from the union, and derivatively from its members, and essentially gives it to the free riders.”  Second, the law violates the associational rights of unions and their members by seriously hampering unions’ ability to recruit and retain members.  Finally, Judge Bailey held that the state law imposes an arbitrary restraint on unions’ liberty in violation of the West Virginia Constitution: “The new law will require unions and union officials to work, to supply their valuable expertise, and to provide expensive services for nothing.  That is, in a word, arbitrary.”

 

 

 

 

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