News & Commentary

May 27, 2018

On Friday Professor Sachs wrote for Vox to explain how the NFL’s new policy punishing players who kneel during the national anthem in protest of police brutality and racism violates labor law and likely the First Amendment.  As Sejal summarized in her post, Professor Sachs’s labor law argument is two-fold: first, in announcing its policy unilaterally, the NFL illegally bypassed the union in violation of the league’s obligation to negotiate employment changes with the players’ bargaining agent, and second, kneeling will now function as a protest of the workplace rule requiring players to stand, which is activity protected by labor law.  Turning to the First Amendment, Professor Sachs asserts that a free speech claim might still succeed even though the NFL is a private employer, because the owners adopted the policy in reaction to the Trump administration’s continued focus on the protests and its impact on the league’s revenue.  The op-ed generated further coverage in Newsweek and The Hill.

President Trump privately signed three executive orders on Friday weakening the workplace rights of around 2 million federal employees.  The new orders build on legislation passed by Congress last year aimed at easing the termination of employees at the Department of Veterans Affairs.  President Trump foreshadowed further changes to federal workplace policy in his State of the Union address in January, when he called on Congress to empower Cabinet Secretaries to “remove Federal employees who undermine the public trust or fail the American people.”  Rather than proceed through Congress, the President opted for executive action.  The first executive order streamlines the process for terminating federal employees.  The administration lamented the current 6-month to 1-year timeline, followed by an average 8-month appeal process, for removal of a tenured employee for poor performance.  Administration officials said the order would reduce an employee’s time to demonstrate improved performance from 120 to 30 days and elevate performance over seniority as a determinant in layoffs.  The order also requires that employee discipline records are sent to the Office of Personnel Management for publication.  The second order restricts union business, such as the handling of grievance procedures, performed during working time to twenty-five percent of an employee’s annual hours.  The third order tells federal agencies to renegotiate union contracts with a more aggressive eye toward reducing waste, creates an Interagency Labor Relations Working Group, and provides for the online publication of collective bargaining agreements.

Also on Friday, President Trump signed an executive order exempting some contract workers on federal parks and other federal lands from Executive Order 13658, a 2014 order signed by President Obama establishing a minimum wage for contractors.  The exemption applies to workers employed as part of contracts connected to seasonal recreational services (such as river running, horseback riding, camping, and ski services) and seasonal recreational equipment rental for the general public, but not food services or lodging.  The order cited seasonal recreational workers’ “irregular work schedules,” “high incidence of overtime pay,” and “unusually high turnover rate” as reasons why a minimum wage would have an unduly negative effect “in making these services available to those who seek to enjoy our Federal lands.”

Bloomberg reports that while the U.S. Department of Labor requires contractors for certain government-funded construction projects to pay workers their area’s prevailing wage, the department has approved projects this year that pay as low as the federal hourly minimum wage of $7.25.  The low wages were likely approved because of the Wage and Hour Division’s reliance on wage survey data in over fifty jurisdictions dating from the 1980s if not earlier.  Mark Erlich, a fellow at Harvard Law School’s Labor and Worklife Program and former executive secretary-treasurer of the New England Regional Council of Carpenters, pointed to the federal government’s outdated labor market data as a major factor in construction’s decline as “a pathway to the middle class.”  David Weil, the former Wage and Hour Division Administrator under President Obama, explained that agency efforts to conduct new surveys face obstacles such as limited resources and sometimes uncooperative employers.

Writing in The Nation, Terri Gerstein argues that district attorneys and state attorneys general should more seriously prosecute crimes committed by employers at the expense of their employees, especially as the federal government turns its back on workers.  While she acknowledges efforts by a handful of prosecutors to bring suits against employers for wage theft, sexual assault, and workplace injuries and deaths, Gerstein says that most prosecutors still mistakenly view workplace crimes as the domain of private lawsuits and civil agencies.  OnLabor readers will recall that in April Gerstein and David Seligman wrote for the blog in response to Ben Levin to defend wage theft criminalization despite the flaws of the criminal justice system.

NBC News highlights bipartisan efforts by at least eight states this year to reform their occupational licensing laws to facilitate the hiring of people with prior criminal convictions.  In March alone, Delaware, Indiana, and Nebraska each adopted laws aimed at easing prior restrictions on licensing through measures such as reducing the waiting period following a conviction after which a prospective licensee can apply and restricting disqualifying crimes to those that are directly job-related.  Laws in Kansas, Maryland, Massachusetts, Tennessee, and Wyoming with similar provisions also went into effect this year.

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