Today’s News & Commentary — November 8, 2018

Published November 8th, 2018 -  - 11.08.183


In its first opinion of the term, the Supreme Court unanimously (8-0) ruled in favor of the employees in Mount Lemmon Fire District v. Guido, holding that the Age Discrimination in Employment Act (ADEA) applies to all public employers regardless of employee headcount.  The ADEA defines an employer as “a person engaged in industry affecting commerce who has twenty or more employees” but says it “also means” any “State or a political subdivision of a State.”  As OnLabor senior contributor Charlotte Garden explains in her opinion analysis for SCOTUSblog, the Court reached its conclusion using both textual and purposive methods of statutory interpretation.  Looking to legislative history, the Court distinguished the way Congress extended coverage to public employers under the ADEA from its approach under Title VII.  For the ADEA, Congress added a new section for public employers to the Act’s “employer” definition.  In contrast, for Title VII, Congress amended the word “person,” already subject to a headcount requirement, to include public employers.  Turning to the text, the Court interpreted the phrase “also means” in the added section of the ADEA to indicate the creation of a new category of employer unattached to the conditions of previous ones.  The employees who brought suit against Mount Lemmon Fire District can now proceed with their discrimination claim.

When notoriously anti-union Wisconsin Governor Scott Walker announced a presidential run in July 2015, AFL-CIO President Richard Trumka’s reaction was direct: “Scott Walker is a national disgrace.”  After Walker finally lost Tuesday night to Democrat Tony Evers after surviving elections in 2012 and 2014, Trumka’s response changed only in tense: “Scott Walker was a national disgrace.”

Virginia Congressman Bobby Scott, currently the Ranking Member of the House Committee on Education and the Workforce, is expected to become Chairman of the Committee once the Democrats take control in January.  Scott has pledged to put labor and employment issues, such as raising the minimum wage and expanding paid family leave, at the top of the Committee’s agenda.  He also plans to change the Committee’s name back to the House Committee on Education and Labor.  Republicans first dropped the “L word” from the Committee’s name when they took power in 1995, but Democrats restored it in 2007.  Republicans dropped it again in 2011.

Noam Scheiber writes in The New York Times that the “most remarkable aspect” of last week’s Google walkout was its identification with the broader labor movement and the notion of collective struggle.  While many Silicon Valley leaders and workers alike have long embraced an ethos of individualism, Scheiber explains that the issues that led to the walkout — from sexual harassment to the company’s work with China and the Pentagon — were too big for any one worker to face on her own.  Instead they “requir[ed] a form of solidarity that would be recognizable to the most militant 20th-century labor organizers.”  While acknowledging the rarity of well-compensated employees standing up to their employers, Scheiber points to precedents like unionized professional athletes.

The S.E.C. is considering changes to Rule 701 that could allow gig economy companies to give equity to their workers by granting companies to the right to provide stock to contractors, not just employees.  The Commission requested public comments on possible changes to 701 in light of the fact that gig workers central to the business model of these companies receive almost none of the wealth they create.  Some labor experts caution against equating stock with wages, urging that only the latter can guarantee workers financial security.  If workers receive equity without the ability to sell it, for instance, they could face taxes for any gains on their holdings but have no clear way to pay them.  Critics also point to the cautionary tale of Juno, a former Uber competitor, which once gave its drivers restricted stock units that would convert to equity, but which scrapped the plan after an acquisition by Gett last year, leaving workers with nothing.

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