News & Commentary

November 10, 2020

Zachary Boullt

Zachary Boullt is a student at Harvard Law School.

In anticipation of the coming Biden presidency, Edward Segal, writing for Forbes, examined Biden’s labor plan to see what he can accomplish through solely executive action and what needs congressional approval. Of the reforms listed on Biden’s plan, the ones he can accomplish solely through executive action are restoring and expanding bargaining protections for federal employees and directing the Department of Labor to collaborate in enforcement with the NLRB, the EEOC, taxing agencies, and other labor agencies. Other planned reforms, such as increasing the federal minimum wage, banning mandatory arbitration agreements, establishing federal standards for gig workers, removing the ban on secondary boycotts, and expanding federal labor protections to farmworkers and domestic workers will require congressional action. Segal argues that the outcome of the Georgia Senate runoffs will be essential in determining how much of the agenda can get passed and whether the Biden administration will have to bargain or settle for less.

The EEOC is updating their religious bias guidance to bring it into accord with recent Supreme Court decisions, namely Burwell v. Hobby Lobby Stores, Inc. and EEOC v. Abercrombie & Fitch. The proposed changes to EEOC’s compliance manual, which is non-binding, will reflect precedent enabling closely held corporations to use the Religious Freedom Restoration Act as a defense to government action, and precedent dictating that job applicants don’t have to show they notified an employer of the need for religious accommodation to prove discriminatory hiring practices based on religion. The changes were approved by agency commissioners along partisan lines, with Republicans voting in favor. The changes will now be reviewed by the Office of Management and Budget before entering a notice-and-comment period.

A California appeals court has ruled that a class of financial advisers paid solely on commission are not exempt from state overtime laws because their pay is not considered a salary. The commission tier system paid advisers once per month, and if the pay did not equal double the minimum wage, the advisers would receive an advance to bridge the threshold that the employees would later have to repay. The appeals court ruled that this system did not qualify as a salary for purposes of the California overtime law exemption to employees making twice the minimum wage. This was based on the Fair Labor Standards Act’s standard that salary compensation cannot be subject to work-performance-based reductions.

Mayor Jenny Durkan of Seattle has begun appealing to the Washington state legislature to restrict the power of arbitrators to overturn police discipline. Durkan’s plan involves limiting the power of arbitrators to overturn a chief’s decision only if it was arbitrary and capricious, and it would also prevent arbitrators from conducting independent investigations in situations of police discipline. Durkan’s supplication for the arbitration changes comes on the heels of an arbitrator ruling that the city had to rehire an officer who punched a handcuffed woman in the eye. The incident convinced a federal judge to keep the city police department under federal supervision. Arbitrators have also overturned or reduced police discipline in Seattle more often than not in the past decade. Police unions are staunchly opposed to the change, and some state legislators are nervous about how undermining arbitration protections for police unions could undermine them for unions as a whole. Other legislators, however, support the measure as necessary to curb abuse of police power and to enhance accountability.

A Knoxville flight attendant is suing the Transport Workers Union of America Local 577, alleging religious discrimination and forced payment of dues. The flight attendant, Annlee Post, claims to have religious objections to paying union dues based in her Christian faith. The union requires dues for employees to be eligible to control their own work schedule, seek promotions, and gain seniority. Post’s attorneys argue that the federal Railway Labor Act, which overrides Tennessee right-to-work law, only permits compulsory union fees as a condition of continued employment, not for other reasons, such as maintaining bidding privileges or acquiring seniority status. Post is being represented by the National Right to Work Legal Defense Foundation.

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