Today’s News & Commentary – March 6, 2018

Published March 6th, 2018 -  - 03.06.1814


On Monday, a test case about racial bias in hair testing began in a Boston district court.  A black woman who applied for a job as a Boston police officer but was denied when her hair sample tested positive for cocaine and a group of black officers who claimed they were reprimanded or fired after positive drug tests originally sued the city in 2005.  The 40 plaintiffs in the case claimed that the hair testing procedure was discriminatory.  Over the course of the intervening decade, the case was heard by the 1st Circuit twice.  The first time the 1st Circuit ruled on the matter, it determined that testing hair alone had a disparate impact on black employees, and remanded the case to the district court.  The district court found that there was no compelling evidence that the police department refused to provide an equally reliable alternative test.  In December of 2016, the 1st Circuit once again sent the case back to district court, reasoning that hair testing plus urinalysis could result in less disparate impact.  Hair testing has often been advertised as better than other drug testing methods because it detects drug use much farther back.  Forensic science experts have questioned the validity of the test in determining whether detected drugs were actually ingested or absorbed from the environment.  Furthermore, cocaine binds to melanin, which is found in greater concentrations in darker hair.  Some hair treatments frequently used by African Americans weaken hair cuticles, which can lead to increased absorption of drugs in the environment.  The case will potentially make some headway in resolving the question of whether or not hair testing is a racially discriminatory practice.

A New York Times op-ed by David Webber offered a sharp critique of 401(k)s as replacements for pensions.  Webber argues that the debate over pension reform is rooted in a fundamental divide between the wealthy and the less well off.  401(k)s create a structure where investees lack the leverage and information to effectively negotiate and advocate for themselves.  According to Webber, traditional pension funds provide beneficiaries with more leverage because they are collective.  Pensions funds continue to evolve in ways that afford shareholders more power to make their preferences known.  These traditional pension funds are increasingly under attack by advocacy groups, with the goal of converting pensions into 401(k) plans.  Advocates of pension reform claim that reform is necessary to avoid almost certain crisis, but Webber questions the veracity of the claim and why reform options other than 401 (k)s are not being heavily considered.   He concludes that appropriate pension reform has to provide shareholders with an opportunity to meaningfully voice their concerns; 401(k)s will suppress, rather than amplify, shareholders’ voices.

The NLRB has asked the D.C. Circuit to reopen litigation in Browning-Ferris Industries.  In Browning Ferris, the NLRB ruled that employers who exercised control over another business’ employees could be considered a joint employer for the purposes of some NLRB cases and proceedings.  In December 2017, the NLRB overruled Browning-Ferris, returning to its previous definition of joint employer in Hy-Brand Industrial Contractors.  After deciding Hy-Brand, the NLRB asked the D.C. Circuit to remand Browning-Ferris, which it did. However, the NLRB then vacated Hy-Brand after an investigation by the NLRB’s inspector general concluded that one of the board members who was part of the Hy-Brand majority, William J. Emmanuel, should have recused himself.  The NLRB’s counsel has determined that, as a result of vacating Hy-Brand, Browning-Ferris is once again the current law on joint employers; as such, the enforcement issues that were originally presented on appeal persist.  Because of this, the NLRB has requested that the D.C. Circuit proceed with hearing the appeal of Browning-Ferris.

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