News & Commentary

September 4, 2020

Alexandra Butler

Alexandra Butler is a student at Harvard Law School.

According to the Bureau of Labor Statistics (BLS), August saw a 1.4 million increase in nonfarm payroll employment, bringing the unemployment rate down to 8.4%. Yet, both the BLS and the New York Times note that this increase is much smaller than that which has occurred in past months. Moreover, the Times highlights that the report may not accurately demonstrate how the end of the additional $600 in unemployment benefits has affected the labor market. Specifically, it notes economists’ concerns that the report may be used to argue that additional federal funding is unnecessary, a policy decision that could have severe consequences later in the year. In addition, the Times emphasizes that though the highest number of added jobs came from the government sector, that increase was largely attributable to temporary workers hired solely for the 2020 Census.

ADP, a human resources management firm, also released its National Employment Report, revealing that the increase in nonfarm private sector payrolls in August failed to meet estimated projections. Based on data collected from ADP-client payrolls that include 26 million workers, U.S. businesses added a total of 428,000 jobs, rather than the expected 1.17 million and lower than the 1 million reported by BLS. The majority of the jobs added were found in the service-providing sector, reflecting state decisions to re-open the economy. For example, the leisure and hospitality sector reported the highest number of jobs added at 129,000.

Reinforcing Michigan’s attempt to prevent the spread of coronavirus among farmworkers, the Sixth Circuit recently denied a motion for a preliminary injunction, the effect of which would temporarily prohibit mandatory testing of farmworkers in the state. The motion was brought by a group of Michigan farmers and workers as part of a larger claim that the Michigan mandate discriminates against Latinos in violation of the Equal Protection Clause of the Constitution. The Sixth Circuit disagreed, however, affirming the lower court’s decision that the mandate was race-neutral and that the “[p]laintiffs could not disprove . . . Defendants’ assertion that the Order is motivated by the State’s rational desire to protect migrant workers, their families, their communities, and the food supply chain.” 

Breaking with its previous understanding that it has unfettered ability to bring employer “pattern or practice” discrimination suits under § 707 of Title VII, the Equal Employment Opportunity Commission (EEOC) has instituted a new policy that limits this power. Under the new interpretation, the EEOC can only file these types of lawsuits when procedural requirements have been met. Those requirements include an official agency charge against the employer in question, as well as “an endeavor to eliminate . . . [a discriminatory] practice by informal methods of conference, conciliation and persuasion.”  While the letter announcing this decision argues that this limitation is a “better reading of the statutory text,” Democratic EEOC Commissioner Charlotte A. Burrows sees the decision as a step backwards in light of “call[s] for an end to systemic discrimination.”  

In Putting California on the High Road: A Jobs and Climate Action Plan for 2030, UC Berkeley’s Center for Labor Research and Education provides ways to ensure that progressive climate policy serves, rather than undermines, the labor force and its needs. The report frames its findings and analysis in the context of creating a “high-road economy” that finds its success in worker investment. Specifically, the report stresses that any interventions in this space must combine efforts to create more equitable jobs with efforts to better prepare the workforce for the transition to clean energy. In discussing the findings with the Los Angeles Times, Carol Zabin, one of the authors of the report, highlights that the best approach is to consider how to “‘green[]’ existing jobs” – in other words, how to enhance existing training programs in related sectors to become more inclusive of clean energy technology. In addition, as the Times highlights, the report also addresses how to make this new clean energy workforce inclusive of minority workers.

State unemployment agencies continue to grapple with problems that are ultimately affecting unemployment applicants and recipients. In states such as Idaho and North Carolina, unemployment recipients are receiving overpayment of benefit notices that are requiring them to return the specified amounts. According to the agencies, officials send these notices to those it has identified as no longer qualifying for unemployment assistance. These decisions are normally the result of newly-obtained or discovered data regarding an individual’s application for aid, as benefits are normally dispersed using preliminary information. For state agencies, these notices serve as a mechanism to combat fraud in the unemployment system, a problem that is concerning officials in California where 11.9 unemployment recipients have received $76.9 billion in total aid.  

Enjoy OnLabor’s fresh takes on the day’s labor news, right in your inbox.