Weekend News & Commentary — May 5–6, 2018

Published May 6th, 2018 -  - 05.06.188


Immigrations and Customs Enforcement Acting Director Thomas Homan is retiring in June, but continues to escalate worksite enforcement efforts. Homan appears to be delivering on his promise last fall to oversee a four or fivefold rise in rates of workplace immigration enforcement, Bloomberg Law reports.  In January ICE introduced a steeper penalty scheme for employers’ failures to complete I-9 employment verification forms; due to the administrative process, these penalties are only now being applied, according to immigration attorneys.  In addition to conducting more I-9 audits backed by harsher consequences, ICE has been arresting employees at workplace raids, and enlisting employers to become “part of the raids” by assisting ICE agents to identify and gather unauthorized workers.

More employers are avoiding interview questions about prior pay, NPR reports.  The question represents a “legal minefield” as different jurisdictions have addressed varying issues involving the legality of inquiries into salary history.  Last Monday U.S. District Judge for the Eastern District of Pennsylvania Mitchell S. Goldberg struck down the “inquiry provision” of a Philadelphia city ordinance designed to combat pay disparities among employees.  The ordinance’s inquiry provision “prohibits an employer from inquiring about a prospective employee’s wage history,” and violates the First Amendment.  The question is a form of “commercial speech,” that cannot be restricted because, while the city’s interest in promoting pay equity is great, the city failed to furnish evidence to establish that the restriction would remediate “the alleged harm of discriminatory wages being perpetuated in subsequent wages such that they contribute to a discriminatory wage gap.”  The ordinance’s “reliance provision,” which “makes it illegal for an employer to rely on wage history ‘at any stage in the employment process’ to determine a salary for an employee,” is lawful, according to Judge Goldberg.  Other courts, including the Ninth Circuit in an opinion by the late Judge Reinhardt, have recently found that employers violate the Equal Pay Act if they justify wage disparity according to prior pay.  As the New York Times suggests, employers would be wise to avoid the question regardless of the mandate to do so.

Many employers are also dropping another inquiry of applicants: marijuana use is “quietly” being omitted from drug tests, the Associated Press reports.  While marijuana testing had been “a fixture at large American employers for at least 30 years,” it has also excluded from positions a potentially wide swath of the workforce, a shallowing of the labor pool that employers can no longer withstand.  Caesar’s Entertainment in Las Vegas, Nevada, where recreational marijuana is now legal, is among the major companies to forego the testing of potential employees.

In Beaverton, Oregon, and by video hookup, Nike CEO Mark Parker acknowledged to his workers that he must have overlooked the conditions that allowed pervasive discrimination and sexual harrassment.  After weeks of “upheaval” following revelations from a worker-driven survey, Parker pledged comprehensive examination of individual allegations, the climate and culture at headquarters, and possible avenues for proactively correcting bias and discriminatory conduct.

The NFL faces mounting legal troubles over teams’ treatment of their cheerleaders.  Following Wednesday’s revelation that in 2013 Washington cheerleaders were allegedly coerced into a topless photo shoot and later instructed to perform escort services for high-level sponsors, the league finds itself in an uneasy relationship with its teams.  As Bloomberg reports, the NFL’s efforts “to keep these controversies at arm’s length” may enable the conduct.  The noninterventionist policy may also open the league up to liability, according to Professor Paul Secunda.  The liability question depends on how the NFL fares under the joint-employer doctrine, a “rapidly changing area of labor law” that shifts according to NLRB precedent and prosecutions.

The unemployment rate remains low, according to the April numbers the Labor Department released on Friday.  Last month saw the addition of 164,000 jobs, 4 cents/hour rise in average earnings, and a 3.9% unemployment rate.  According to Forbes commentator Erik Sherman, the good signs aren’t all good, as optimism should be tempered by a harder look at the math, which reveals that “more people disappeared from the labor rolls.”

The Chicago Sun Times pays tribute to SEIU Local 880 organizer Lula Bronson, a daughter of sharecroppers who died last month at age 81.  Bronson knocked on doors throughout the Midwest to grow “a tiny union local from seven members to 92,000.”  Local 880 is today known as SEIU Healthcare, and represents those who work as home healthcare assistants, aiding the elderly, ill, and children – a labor force heavily comprised of women, including women of color.  Bronson is remembered for dogged efforts but a soft-spoken, “gentle and so sweet and loving” style.  Senior advisor to the union Keith Kelleher observed, “[s]he worked all of her life – eight kids and building the union.”

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