Today's Workplace is your source for the latest developments in workplace rights and employment law. It is written by Paula Brantner, Executive Director of Workplace Fairness. In each entry, Paula focuses on legal and political information relevant to employee rights and fairness issues in the workplace.
As we previously reported, President Donald Trump’s Labor Secretary Alexander Acosta announced a new proposed regulation to allow restaurant owners to pocket the tips of millions of tipped workers. This would result in an estimated $5.8 billion in lost wages for workers each year?wages that they rightfully earned.
And most of that would come from women’s pockets. Nearly 70% of tipped workers are women, and a majority of them work in the restaurant industry, which suffers from some of the highest rates of sexual harassment in the entire labor market. This rule would exacerbate sexual harassment because workers will now depend on the whims of owners to get their tips back.
In a letter to Congress, the AFL-CIO opposed the rule change in the strongest possible terms, calling for the proposal to be rescinded:
Just days before the comment period for this [Notice of Proposed Rulemaking] closed, an extremely disturbing report appeared indicating that analysis of the costs and benefits in fact occurred, but was discarded. On Feb. 1, 2018, Bloomberg/BNA reported that the Department of Labor “scrubbed an unfavorable internal analysis from a new tip pooling proposal, shielding the public from estimates that potentially billions of dollars in gratuities could be transferred from workers to their employer.” Assuming these reports are correct, the Department of Labor should immediately make the underlying data (and the analyses that the Department conducted) available to the public. We call on the Department of Labor to do so immediately and to withdraw the related Notice of Proposed Rulemaking.
The AFL-CIO strongly urges the Department to withdraw the proposed rule, and instead focus its energies on promoting policies that will improve economic security for people working in low-wage jobs and empower all working people with the resources they need to combat sexual harassment in their workplaces.
The Department of Labor must provide an estimate of its proposed rules’ economic impact. However, while suspiciously claiming that such an analysis was impossible, it turns out that this wasn’t true:
Senior department political officials—faced with a government analysis showing that workers could lose billions of dollars in tips as a result of the proposal—ordered staff to revise the data methodology to lessen the expected impact, several of the sources said. Although later calculations showed progressively reduced tip losses, Labor Secretary Alexander Acosta and his team are said to have still been uncomfortable with including the data in the proposal. The officials disagreed with assumptions in the analysis that employers would retain their employees’ gratuities, rather than redistribute the money to other hourly workers. They wound up receiving approval from the White House to publish a proposal Dec. 5 that removed the economic transfer data altogether, the sources said.
The move to drop the analysis means workers, businesses, advocacy groups and others who want to weigh in on the tip pool proposal will have to do so without seeing the government’s estimate first.
Democrats in Congress quickly responded that the rule change should be abandoned, as the new rule would authorize employers to engage in wage theft against their workers. Sen. Elizabeth Warren (D-Mass.) said:
You have been a proponent of more transparency and economic analysis in the rulemaking process. But if DOL hid a key economic analysis of this proposed rule—and if [Office of Management and Budget] officials were aware of and complicit in doing so—that would raise serious questions about the integrity of the rule itself, and about your role and the role of other OMB officials in the rulemaking.
Take action today and send a letter to Congress asking it to stop Trump’s tip theft rule.
This blog was originally published at AFL-CIO on February 15, 2018. Reprinted with permission.
About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.
Industry-friendly lawmakers are waging a coordinated campaign with the Trump administration to strip Americans of their legal rights to use the courts to hold polluting companies and the government itself accountable for violations of bedrock environmental laws and other important public protections.
Members of Congress have introduced more than 50 bills over the past year that would make it extremely difficult or impossible for people to seek justice in a court of law, according to an in-depth analysis by Earthjustice, a nonprofit environmental law organization. The proposed bills are targeting laws related to environmental protection, public health, consumer rights, and civil liberties.
The number of bills introduced in the current 115th Congress that would strip individuals of their legal rights to seek justice in a court of law have doubled from the previous Congress and quadrupled since the 112th Congress that ended in 2013. Similar to how credit card companies and other retailers block consumers from the use of a court of law to resolve disputes, these bills would have a similar effect by preventing aggrieved members of the public from filing lawsuits to ensure laws are enforced.
“The corporate interests that stand to benefit from these types of provisions see this window of time as an opportunity,” Patrice Simms, vice president of litigation at Earthjustice, said in an interview with ThinkProgress. “They have a president that they know will sign anything that benefits them and they have majorities in the House and Senate that they believe are willing to move the bills forward.”
Earthjustice has created an interactive tool that tracks each of these pieces of legislation. If passed into law, these bills would erect permanent obstacles that will prevent people and communities from going to court to defend their rights.
During the current Congress, 12 bills with a combination of threatening provisions have passed the House of Representatives. The president has signed one into law: H.J.Res. 111 repealed the Consumer Financial Protection Bureau’s rule prohibiting banks, lenders, and other corporations from forcing consumers with grievances into arbitration. This law also prevents individuals from joining together in class action lawsuits in federal courts against banks, predatory lenders, and other bad actors.
Members of the George W. Bush administration, including some appointed by President Donald Trump to high-level positions in his administration, wanted to see similar restrictions placed on the rights of individuals to have their day in court. “Usually, it’s been a pretty extremist view,” said Jessica Culpepper, an attorney with Public Justice, a nonprofit law firm that focuses on environmental protection, consumer rights, and civil liberties.
For many years, a contingent in Congress has tried to limit the ability of citizens to use “bedrock environmental laws” like the Clean Water Act to protect themselves. “What is frightening is that at least with the Bush administration, some things were sacred. You still couldn’t get a lot of support for stripping citizens’ abilities to protect themselves,” Culpepper said. “And now those things are on the table.”
Congressional Republicans have been trying for years to get these types of bills passed. They’ve been introduced before, but typically only to make certain industry constituents happy, with little chance of passage, according to Culpepper. The bills “have not been as big of a threat” as they are under the current Congress, Culpepper told ThinkProgress.
According to Earthjustice, the list of bills from the current Congress attacking individuals’ access to justice include:
6 bills with provisions to eliminate judicial review, eroding the role of courts as a check and balance on other branches of government.
14 bills that could effectively strip people of their right to sue by either forcing them into arbitration or blocking their ability to join together in class action lawsuits.
17 bills that would make it too expensive to sue, forcing members of the public to bear the burden of costly litigation against the government.
10 bills that meddle with timely resolution through settlements, forcing government agencies to draw out challenges through costly litigation fights.
One bill, dubbed the “Farm Regulatory Certainty Act” by its industry backers, was introduced in the previous Congress and didn’t move at all. But in the current Congress, the bill is gaining momentum, with more than 60 co-sponsors. Culpepper delivered testimony to a congressional hearing in November in which she described the bill as an effort to shield “an entire industry from liability.” The bill “would essentially “strip rural Americans from their right to protect their drinking water,” she told lawmakers
Congress recognizes it cannot simply repeal the laws it doesn’t like. Its members can’t say, “We’re going to get rid of the Clean Water Act.” But what they do see they can do is engage in “this furtive attempt to undo the protections that those laws actually provide,” explained Simms.
By furtive attempts, Simms is referring to how certain lawmakers now realize that if an environmental law, for example, cannot be undone by direct repeal, they can try to pass bills that make the laws impossible to enforce. For example, the House of Representatives last October passed a bill that would prevent the Environmental Protection Agency (EPA) and other federal agencies from settling lawsuits, even when the government has acted unlawfully.
House Republicans have dubbed the bill, H.R. 469, the “Sunshine for Regulations and Regulatory Decrees and Settlements Act.” Earthjustice prefers to call the bill by describing its real intent: “Delaying Public Health Protections.” The bill still has not passed the Senate.
Simms said this particular bill is a prime example of how congressional Republicans are working closely with the Trump administration on these types of bills. “There’s a degree of coordination between Congress and the administration that I have not seen in the past,” he said. “They’re coming back over the course of the last year with an intensity that we have not seen before and a coordination that I have not seen in the past. This is really something frightening.”
H.R. 469 reflects almost exactly the policy adopted by the Trump administration. In mid-October, EPA Administrator Scott Pruitt announced his agency would no longer engage in settlement discussions with public interest lawyers, what anti-environment lawmakers refer to as “sue and settlement” practices. “What did we see several weeks later? A bill gets passed in the House that would essentially codify that and apply it not to just EPA but all agencies,” Simms said.
The bill would inhibit the EPA and other federal agencies from settling lawsuits, even when the government has acted unlawfully. This drags out legal action, raising costs for plaintiffs, and allows the administration to avoid enforcing environmental regulations, leading to more pollution and industrial harm to communities, according to Earthjustice.
In her 10 years as an environmental and public interest attorney, Culpepper said she’s never seen so many bills introduced at once — bills that would roll back individuals’ ability to use the courts to seek justice — that have a good chance of moving through Congress. “I spent more time fighting these things in 2017 than I have in my an entire career,” she said.
This article was originally published at ThinkProgress on February 12, 2018. Reprinted with permission.
About the Author: Mark Hand is a climate and environment reporter at ThinkProgress.
Attorneys general from all 50 states, the District of Columbia, and U.S. territories wrote a letter Monday imploring Congress to make the courts more accessible to victims of sexual harassment.
The letter, addressed to congressional leaders, including House Speaker Paul Ryan (R-WI), House Minority Leader Nancy Pelosi (D-CA), Senate Majority Leader Mitch McConnell (R-KY), and Senate Minority Leader Chuck Schumer (D-NY), explicitly addresses legislation that would eliminate mandatory arbitration agreements between employers and victims when sexual harassment claims are made. Arbitration agreements result in behind-closed-door settlements that deny victims due process under the law.
“Additional concerns arise from the secrecy requirements of arbitration clauses, which disserve the public interest interest by keeping both the harassment complaints and any settlements confidential. This veil of secrecy may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief,” the attorneys general wrote. “Ending mandatory arbitration of sexual harassment claims would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims.”
The letter goes on to acknowledge that both the House of Representatives and Senate have legislation in the works that would address this issue directly, and that “whatever form the final version may take, [the attorneys general] strongly support appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court.”
The attorneys general also praised Microsoft, which announced in December that it had discontinued arbitration policies for sexual harassment claims, for being an early trendsetter in an important movement.
“As Microsoft’s President and Chief Legal Officer has fairly noted, ‘[b]ecause the silencing of voices has helped perpetuate sexual harassment, the country should guarantee that people can go to court to ensure these concerns can always be heard,’” they wrote.
The House of Representatives passed legislation last week that would reform the way lawmakers’ offices handle sexual harassment cases. As it currently stands, the House’s sexual harassment policy is all but designed to protect the harasser. The new legislation would overhaul parts of the Congressional Accountability Act, streamlining the process by eliminating the mandatory 30 days of counseling and mediation period accusers were previously forced to endure. It also required that all claims in which a settlement was made be referred to the House Ethics Committee. A version of the bill is currently in the works in the Senate.
“What is known is that harassment is not confined to industry or one group. It affects minimum-wage fast-food workers, middle-class workers at car manufacturing plants, and white-collar workers in finance and law, among many others,” the senators wrote in a letter. “No matter the place or source, harassment has a tangible and negative economic effect on individuals’ lifetime income and retirement, and its pervasiveness damages the economy as a whole.”
This article was originally published at ThinkProgress on February 12, 2018. Reprinted with permission.
About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.
The Family and Medical Leave Act mandates that employers provide up to 12 weeks of unpaid leave for a serious medical condition. But what happens when an employee requests additional weeks or months off for a disabling condition?
The 7th U.S. Circuit Court of Appeals has rejected one man’s request for a three-month extension beyond his FMLA leave. After his employer fired him, the man claimed the company had violated its obligations under the Americans with Disabilities Act. Now he is asking the Supreme Court to step in to interpret the ADA favorably.
Is long-term disability leave a reasonable accommodation?
Employers (and courts) have long wrestled with extended leave under the Americans with Disabilities Act. The ADA requires employers to make “reasonable accommodation” of a person’s disability. It is illegal to fire someone on the basis of their disability. But how far do employers have to go to make allowances for a person who cannot work at all because of their physical or mental impairment?
Raymond Severson took a four-month leave from his blue-collar job to deal with disabling back pain. At the end of his leave he had back surgery, which required another two or three months of recuperation. Having exhausted his 12 weeks under the Family and Medical Leave Act, he asked his employer, Heartland Woodcraft Inc., for a continuation of leave. The company declined and terminated his employment.
Courts are split on the issue
Severson sued for discrimination, arguing that his termination was a failure to provide reasonable accommodation under ADA. The district court sided with the employer and the Seventh Circuit affirmed that decision. In its opinion, the appellate court interpreted the ADA as an anti-discrimination statute, not a medical leave entitlement. It flatly asserted that “a multi-month leave of absence is beyond the scope of reasonable accommodation.” The decision was consistent with a similar rulingby the Seventh Circuit earlier in 2017 which upheld the termination of a state employee who was unable to resume work after a four-week extension beyond FMLA.
But the Seventh Circuit decisions are at odds with the interpretation by the Equal Employment Opportunity Commission and other circuit courts. The EEOC and appellate courts have agreed that the ADA does not require indefinite, open-ended leave. Yet they have ruled that employers cannot put an arbitrary hard cap on medical leave. The EEOC’s stance led to a $2 million settlement on behalf of a UPS worker who was denied leave beyond UPS’s 12-month cap.
Can employers issue pink slips after FMLA runs out? Is a multi-month extension beyond FMLA a reasonable request? What if the employee needs a second extension or future accommodations? The Supreme Court often wades in when the appellate courts are divided and the case has broad implications. But the high court has a full docket and may not take up the case this year. For the time being, employees and employers may be at the mercy of the circuit where they are located.
This blog was originally published by Passman & Kaplan, P.C. on February 2, 2018. Reprinted with permission.
About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness. The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.
Women in the workplace have made major strides. Women currently make up 48% of the workforce and are the sole or primary breadwinner for 40% of families in the United States. Yet most family responsibilities still rest on women’s shoulders and, too often, women put in a full day’s work only to come home and clock in for a second shift.
As Secretary-Treasurer of the AFL-CIO, I am constantly in awe of the powerful work the 6.8 million women of the labor movement do to advance issues that matter. Consider this: In the past decade, there has been tremendous momentum at the state and local level, with millions of working people winning the freedom to take time off to care for family, and labor unions have been at the center of these wins. Which might explain why states with higher union density are more likely to have paid sick leave and paid family and medical leave laws. And, when unions are strong, women are strong. Unions make a difference for women in dollars and cents—$222, to be exact. That’s how much more the typical woman in a union job makes in a week compared with a woman in a non-union job.
Beyond supporting working women, the labor movement has always advocated for policies that promote a full-employment economy at wages high enough to allow working people to support their families. We work to combat policies that erode the rights of working people, and make sure they’re rewarded for the wealth they help create. To achieve this, we support a broad range of policies, including restoring the minimum wage to a living wage, restoring overtime protections, prevailing wage standards, and putting an end to wage theft and the rampant misclassification of employees as independent contractors. The AFL-CIO adopted this working people’s Bill of Rights at our recent convention to demand that all working people have the right to:
A Good Job with Fair Wages: Everyone who wants to work has the right to a good job where we earn wages that allow us to support ourselves and our families.
Quality Health Care: Regardless of income, job or a pre-existing condition.
A Safe Job: Free from harassment and violence.
Paid Time Off and Flexible, Predictable Scheduling: To spend time with family or care for ourselves or a loved one.
Freedom from Discrimination: In hiring, firing, and promotions.
Retire with Dignity: And financial security.
Education: Public K-12, higher education and career training that advances our knowledge and skills without leaving us in debt.
Freedom to Join Together: With our co-workers for better wages and working conditions, whether we are in a union or not.
A Voice in Democracy: To freely exercise our democratic voice through voting and civic participation.
Building on recent victories, state legislators have demonstrated that they are #FightingForFamilies in 2018 by introducing legislation to advance some of these policies in states across the country, and union members have been advocating alongside them. Sixteen states have bills pending for paid family and medical leave in 2018. Thirteen states are considering bills for equal pay, and 13 states are considering paid sick days. Sixteen states are considering measures to prevent employment discrimination against LGBT workers. Ten states have bills to ensure pregnant workers’ rights. And that’s just the beginning.
Young workers, immigrants, women, LGBT people and communities of color are coming together to advance changes that will improve our lives. When we join in union, we are a formidable force, a political force. Together, we can make equal pay, paid leave, and fair scheduling the law of the land. Together, we can lead a movement to change the world and build an economy that works for us all. Together, we can reject quiet acceptance and build an America where all working women can sustain their families and realize their dreams.
Women fight and win battles every day. By standing and negotiating together, we will continue to make the world a better place for all of us. Unions are rejecting the status quo and are working to build an America where all working people can sustain their families and realize their dreams.
This blog was originally published at AFL-CIO on February 9, 2018. Reprinted with permission.
About the Author: Liz Shuler became the first woman ever elected Secretary-Treasurer of the AFL-CIO when she was voted into office by acclamation at the Federation’s 26th convention on September 16, 2009.
Janus v. AFSCME, which begins oral arguments on February 26, is the culmination of a years-long right-wing plot to financially devastate public-sector unions. And a Supreme Court ruling against AFSCME would indeed have that effect, by banning public-sector unions from collecting mandatory fees from the workers they are compelled to represent. But if the Court embraces the weaponization of free speech as a cudgel to beat up on unions, the possibility of other, unintended consequences is beginning to excite some union advocates and stir fear among conservative constitutional scholars.
The ruling could both wildly increase workers’ bargaining power and clog the lower courts with First Amendment challenges to routine uses of taxpayer money. At a minimum, it has the potential to turn every public sector workplace dispute into a constitutional controversy—and one Midwest local is already laying plans to maximize the chaos this could cause.
Toward labor’s bill of rights
From the earliest court decision dealing with workers’ protest activity—the 1806 Cordwainers Trial in Philadelphia–courts have strenuously avoided applying the First Amendment to unions. Instead, conservative courts treated unions as criminal conspiracies that interfered with employers’ property and contract rights.
All of these practices are vulnerable to First Amendment challenges as government restrictions of workers’ speech. They become more vulnerable if the Supreme Court rules in Janus that every interaction that a union has with a governmental subdivision is inherently political.
Even more vulnerable are anti-union laws in the public sector. Take Scott Walker’s Act 10, which forbids unions from making bargaining proposals over anything other than wages that don’t exceed the cost of living. Or the New Jersey case law that forbids teachers unions from even proposing restrictions on class size. How are those not explicit restrictions on workers’ speech?
The most common objection to this kind of thinking on the Left is that a judiciary that could buy such a craven argument as Janus will refuse to take the precedent to its logical conclusion and shamelessly waving away workers’ free speech rights. That may be true, but there is a decent chance that the next couple of federal elections could bring a “blue wave” that will alter the ideological make-up of the courts for decades. Janus could hand new liberal majorities a roadmap for restoring a legal balance of power between corporations and workers. It’s enough of a possibility that conservative legal scholars have begun paying attention to the case, and they see the potential peril for their cause.
Every workplace dispute, a constitutional controversy
Amicus briefs in the Janus case have been rolling in since the summer. These briefs are filed by scholars and organizations who are not parties in the case, but who nevertheless have strong opinions about its outcome. They may (or most likely may not) be read by the justices, but they could influence questions and oral arguments at the hearing.
Most of the amici have been from the usual suspects. Right-wing think tanks are spouting the same tired clichés and intellectually bankrupt arguments. Union advocates question the standing of the plaintiff to even mount a First Amendment claim, argue in favor of respecting long-settled precedent, or—in a new argument—suggest treating agency fees as a kind of tax .
But two briefs stand out, both for what they say and for who is saying it.
One brief, filed by influential right-wing libertarian ideologues Eugene Volokh of UCLA and William Baude of the University of Chicago, actually argues for strengthening the 40-year-old precedent that Janus aims to overturn. The 1978 Abood decision was wrong, they argue, to moot the question of whether workers compelled to pay their fair share for union representation might have a legitimate First Amendment objection to how a union might spend any portion of their fees. That opened the door, Baude and Volokh say, to taxpayers making line-by-line objections to how the government spends its money. “Just as non-union members may find many reasons to disagree with a public union’s speech, there are countless grounds to object to other speech supported by government funds,” they write.
Pointing to government propaganda urging military enlistment and purchase of war bonds, the scholars note that there has never been an option for taxpayers to opt out of funding such practices with which they may disagree, nor even any kind of “equal time” right of rebuttal. A ruling for the plaintiff in Janus could tug at the loose threads of the very notion of a common interest in government.
Another amicus, filed by law professors Charles Fried of Harvard and Robert C. Post of Yale, warns of undermining the precedent set in the 2006 Garcetti v. Ceballos. That decision gave public sector employers “the broad discretion they need to manage their workplaces” by permitting them to compel employees to comply with directives they find politically objectionable. Ruling in favor of Janus, they warn, “would therefore threaten to transform every workplace dispute into a constitutional controversy.”
Fried served as Solicitor General under Ronald Reagan, so his brief likely carries more water with the conservative justices than pro-union arguments for status quo. Furthermore, swing Justice Anthony Kennedy wrote the majority decision in Garcetti, so he would presumably take interest in how the Janus case could blow his work up.
A lot of time and money and energy
One local union in the Midwest is champing at the bit to turn every disagreement they have with the bosses into a constitutional controversy. A January blog post by the Countryside, Ill.-based Operating Engineers Local 150, titled, “Union Busters Set Themselves Up for Janus Backfire,” was widely circulated in #1u social media circles. In it, the union eyes overturning the laws that have made public-sector bargaining illegal in many jurisdictions. It also suggests that workers should be able to opt out of paying for their pension funds’ lobbying expenses and taxpayers opt out of funding municipal lobbyists (the American Legislative Exchange Council (ALEC), for example, receives indirect support from many taxpayer-funded organizations.)
While the gauntlet thrown down by Local 150 was certainly exciting for the few minutes it took to read their fantastical plan to make utter chaos out of a post-Janus world, many readers were left wondering, Are these guys for real?
“We’re going to immediately respond by filing suits to say these laws are unconstitutional,” confirms Local 150 president Jim Sweeney. “Maybe we get screwed again, but we’re going to put corporate powers in a position where they’re forced to explain why workers should only have free speech when it serves them.” So, file that answer under: Hell to the yes.
Local 150 has a track record of pushing the envelope on legal arguments in defense of unions. They’re the union that filed Sweeney vs. Pence, a federal court challenge to Indiana’s “right-to-work” law. Although ultimately unsuccessful, it resulted in a strong dissenting opinion from Chief Judge Diane Wood that forcing unions to spend resources on non-members without compensation is an unconstitutional “taking” under the Fifth Amendment. That has become the legal argument that could overturn “right-to-work” laws around the country, with several cases wending their way through federal circuits at this very moment.
The union has already sent a formal demand letter, chock full of legal citations, to the Illinois Municipal Retirement Fund. In it, they complain that their members’ mandatory 4.5 percent retirement contributions are going towards Bank of America lobbying and demand to opt out.
More letters are on the way. Local leaders are hoping to trigger a few rounds of panicked, “WTF?” phone calls to Illinois Gov. Bruce Rauner and other Janus cheerleaders.
If enough unions follow Local 150’s lead and make enough hay out of Janus—or even pose a credible threat to do so—don’t be surprised if more conservative jurists rethink their strategy.
This blog was originally published at In These Times on February 8, 2018. Reprinted with permission.
About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.
The Trump Labor Department’s proposal to let bosses steal workers’ tips—$5.8 billion of them—is under heavy fire. After news broke that the department hid the data showing how bad the plan would be for workers, House Democrats demanded that the Labor Department show its work:
Four House Democrats, in an oversight letter sent Feb. 2 to Labor Secretary Alexander Acosta, asked the DOL to fork over copies of all analyses completed as part of the tip pool rulemaking process. […]
In addition to demands for the DOL to divulge its analyses, the Democrats want a copy of all communication between the DOL and White House Office of Management and Budget pertaining to the quantitative economic analysis.
If implemented, the rescission would greatly harm millions of employees in the United States who depend on tips and would create the real potential for customers to be deceived as to whom will receive and benefit from their tips.
The tip-stealing proposal is also unpopular with the public: a poll conducted for the National Employment Law Project found 82 percent of people opposed.
None of this means that Trump’s labor secretary, Alexander Acosta, is going to back down. But once again the Trump administration is making clear where it stands—definitely not with workers.
About the Author: Laura Clawson is labor editor at DailyKos.
This blog was originally published at DailyKos on February 6, 2018. Reprinted with permission.
As part of his administration’s rollback of key safety and environmental protections, President Donald Trump wants to eliminate the U.S. Chemical Safety Board, a federal agency with a strong record of improving public safety. The proposed gutting of the agency comes as the Trump administration seeks to give a boost to the nation’s petrochemical industry as part of its “energy dominance” agenda.
As with his FY 2018 budget, Trump’s new budget proposal will call for wiping out the Chemical Safety Board’s entire $12 million budget, Bloomberg News reportedThursday. The agency is charged with investigating major chemical fires, explosions, leaks, and other accidents.
The Chemical Safety Board, with its relatively small budget, plays an oversized role among federal agencies. In 2017, in the wake of Hurricane Harvey, the agency was on the frontlines, looking into a fire and explosions at a chemical facility, owned by French company Arkema Inc., northeast of Houston. Fifteen sheriff’s deputies were sent to the hospital on the morning of August 31, 2017, after responding to the chemical fire and falling ill in the middle of the road.
The board was created as part of the Clean Air Act amendments in 1990 and began operations in 1998. The agency’s recommendations are often adopted by industry and government agencies. For example, the agency, with only 40 staff, investigated the Deepwater Horizon oil spill and has performed more than 130 investigations since it began operations in 1998. The agency is modeled after the National Transportation Safety Board (NTSB), which investigates plane crashes and other major accidents. Like the NTSB, the Chemical Safety Board is an independent agency.
Most recently, Chemical Safety Board staff traveled to Oklahoma to investigate a natural gas well explosion that killed five workers. The agency is currently reviewing information about the drill site and plans to interview eyewitnesses and others who were present beginning next week, it said Wednesday in a statement.
The United States averages more than 1,000 industrial chemical accidents each year, according to Public Employees for Environmental Responsibility, a nonprofit group that investigates reports of environmental crimes from government employees. Throughout its history, the agency has responded primarily to incidents with high consequences, including fatalities, injuries, more than $500,000 in facility damage, or significant environmental or community impact.
Starting in 2010, the agency prioritized eliminating an investigation backlog. The backlog peaked at about 22 open cases in June 2010 following the Deepwater Horizon offshore drilling rig explosion and fire. In January 2016, a year before President Barack Obama left office, the number of open investigations has been reduced to seven.
Last year, after the agency learned of its proposed elimination under Trump’s FY 2018 budget, Chemical Safety Board Chairperson Vanessa Allen Sutherland issued a statement expressing extreme disappointment with the president’s proposal.
“For over 20 years, the CSB has conducted hundreds of investigations of high consequence chemical incidents, such as the Deepwater Horizon and West Fertilizer disasters,” Sutherland said. “Our investigations and recommendations have had an enormous effect on improving public safety.”
The agency’s recommendations resulted in banned natural gas blows in Connecticut, an improved fire code in New York City, and increased public safety at oil and gas sites across Mississippi. “The American public is safer today as a result of the work of the dedicated and professional staff of the CSB,” she said.
This blog was originally published at ThinkProgress on February 2, 2018. Reprinted with permission.
About the Author: Mark Hand is a climate and environment reporter at ThinkProgress. Send him tips at firstname.lastname@example.org.
The Department of Labor decided to scrub an analysis from its proposal affecting tipped workers after it found workers would be robbed of billions of dollars, according to former and current department sources who spoke to Bloomberg Law.
In December, the Labor Department proposed a rule that rescinded portions of Obama-administration tip regulations and would allow employers who pay the minimum wage to take workers’ tips. The department said the proposed rule would allow “back of the house” workers, such as dishwashers and cooks, who don’t typically receive tips, to be part of a tip-sharing pool. But the rule also wouldn’t prevent employers from just keeping the tips and not redistributing them.
The department never offered any estimate to the public of the amount of tips that would be shifted from workers to employers. The work of analyzing costs and benefits to proposed rules is legally required for the rulemaking process, Economic Policy Institute noted. EPI did its own analysis and found that tipped workers would lose $5.8 billion a year in tips as a result of this rule. Women in tipped jobs would lose $4.6 billion annually.
After seeing the annual projection showing that billions of dollars would transfer from tipped workers to their employers, senior department officials told staff to revise the methodology to lessen the impact, according to Bloomberg Law. After staff changed the methodology, Labor Secretary Alexander Acosta and his team were still not satisfied with the analysis, so they removed it from the proposal, with the approval of the White House.
Restaurant Opportunities Centers United, a non-profit that advocates for improvement of wages and working conditions for low-wage restaurant workers, has opposed the proposed rule and said it would push a majority-women workforce “further into financial instability.”
Heidi Shierholz, an economist at the Economic Policy Institute, told the Washington Post in December that “the administration is giving a windfall to restaurant owners out of the pockets of tipped workers.”
A department spokesman told Bloomberg Law that the department would likely publish an “informed cost benefit analysis” as part of any final rule but did not answer the reporter’s question about why the department wouldn’t allow the public to react to the analysis it created. The spokesman also claimed the department is acting in accordance with the Administrative Procedure Act, a federal statute governing the ways agencies move forward with regulations. Two purposes of the APA is to make sure there is public participation in the rulemaking process, including by allowing public commenting and make sure the public is informed of rules. The public only has until Feb. 5 to comment on the proposal without viewing the department analysis. But the public could view the Economic Policy Institute analysis created to replace the department’s shelved one.
Some senior attorneys at worker rights’ groups say that the lack of analysis could violate the APA if the department publishes the full analysis with the final rule, as the spokesman said it would, but doesn’t do so during its proposal. That would prove that the department could have created the analysis earlier but decided not to, lawyers told Bloomberg Law last week.
This wouldn’t be the first time the administration has been accused of not properly adhering to the ADA. Many states are claiming the administration violated some part of the Administrative Procedure Act. Only a couple weeks into Trump’s presidency, Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America sought to overturn an executive order mandating that federal agencies eliminate two regulations for every regulation they create. The executive order also required that net costs of regulations on people and businesses be $0 in 2017.
The groups argued that this clearly violates a clause the APA. Judge Randolph Moss of the U.S. District Court for the District of Columbia heard arguments in the lawsuit in August and said, “It’s like a shadow regulatory process on top of the regulatory process.” However, it’s not clear if the rule has been implemented in practice. Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America are still waiting on a ruling.
Economists, labor experts, and worker advocates from the National Employment Law Project, Center on Budget and Policy Priorities, ROC United, and the Economic Policy Institute reacted to the news with outrage.
Jared Bernstein, senior fellow at the Center on Budget and Policy Priorities and former Chief Economist to Vice President Joseph Biden, said he has developed a “high outrage bar” over the past year but “this failure to disclose handily cleared that bar.”
Heidi Shierholz, senior economist and director of policy at Economic Policy Institute, said she believes EPI’s analysis is pretty close to whatever the department of labor came up with in its shelved analysis.
“The basic economic logic is that it is really unlikely that back-of-the house workers would get any more pay if this rule were to be finalized … If employers do share those tips with them, it is likely it will be offset by a reduction in base pay. I don’t think take-home pay would be affected by this rule at all,” Shierholz said.
Shierholz added, “It is likely that the DOL found something in this ballpark too and it’s not surprising that there is just no way to do a good faith estimate and also maintain the fiction that this rule is not terrible for workers, so in that light you can see why it is no wonder that they tried to bury it.”
When asked whether any group planned to sue the department over its decision not to show the analysis to the public, Christine Owens, executive director of the National Employment Law Project, said her organization sent a request to the department asking that it withdraw the rule but that she has not heard back from the department.
“We haven’t decided what further action we may take,” she said.
Sen. Patty Murray (D-WA) released a statement demanding that the department drop the effort to propose this rule:
“This botched cover-up of evidence proving President Trump’s policies help businesses steal billions from workers shows exactly what President Trump truly cares about: helping those at the top squeeze every last penny from families trying as hard as they can to get ahead. Now that their real priorities have been exposed, President Trump should tell Secretary Acosta to abandon this effort immediately.”
This story was updated with additional quotes from economists, labor advocates, and politicians.
This article was originally published at ThinkProgress on February 1, 2018. Reprinted with permission.
About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.
Labor rights advocates are alarmed by a proposal to centralize more control of the National Labor Relations Board (NLRB) at the agency’s Washington, D.C., headquarters and shrink its network of regional offices. Widely viewed as another effort by appointees of President Donald Trump to reverse some union-friendly policies promoted by Obama appointees, the proposal is a step toward an even smaller role for the NLRB in protecting workers’ rights, these advocates charge.
News of the proposal leaked out to media outlets in mid-January, first to the Daily Labor Report and then to the The New York Times. The news reports focused on objections to the proposal by NLRB staff members at the agency’s 26 regional offices. Some of those staffers would be demoted, or lose their jobs entirely, if the proposal is implemented by NLRB General Counsel Peter B. Robb.
Trump appointee Robb “is a man in a big hurry” to remake the NLRB into an agency more responsive to the anti-union demands of conservative Republicans and business interests, says William B. Gould IV, a former NLRB chairman now teaching law at Stanford University. “He looks to be seizing control of the complaint process,” at the regional level, Gould tells In These Times. “That’s terribly important because it is the regional offices that are the great strength of the NLRB … The regional offices are where a union shop steward or a legal practitioner can go to have complaints handled in a professional way.”
Robb, appointed by Trump in September of last year and sworn in Nov. 17, comes to the post with strong anti-union credentials. As described by The New York Times, he was appointed “after a career largely spent representing management, including handling part of the Reagan administration’s litigation against the air traffic controllers’ union that waged an illegal strike in 1981. Most labor historians say the government’s hard line in firing the controllers contributed to organized labor’s decline…”
Robb’s proposal comes on the heels of recent decisions by the five-member board to roll back some Obama-era initiatives that favored unions. Those decisions were more explicitly political, coming after votes by board members in which Republican Party appointees narrowly prevailed over Democratic appointees. As general counsel to the agency, Robb is not a board member, but rather a White House appointee in charge of administering the day-to-day affairs of the agency under the general direction of the Board members.
According to Michael C. Duff, a professor at the University of Wyoming College of Law, the NLRB votes and the actions by Robb are “of a piece with the Trump agenda to downgrade the agency as a defender of labor rights as spelled in the National Labor Relations Act.” A former NLRB staff lawyer himself, Duff tells In These Timesthat “I don’t have a good feeling about what is going on. There is a sense that the agency is being hollowed out.”
“You get a sense that they [Republican appointees] are going to reverse everything,” in NLRB policy that is favorable to workers, Duff continues. As a former staffer who is still in regular contact with some of his NLRB colleagues, Duff says “the situation is probably more dramatic than it looks … [The trend] is essentially a repudiation of labor law as we know it.”
Part of the “hollowing out” process is cutting the budget of the agency. Daily Labor Report’s Laurence Dubé reported last year that a 6-percent proposed cut would mean the elimination of 275 jobs from the agency’s staff. The budget has not been finalized, but staff cuts are expected in the coming year, and may continue throughout the Trump administration, predicts Duff.
Burt Pearlstone, president of the National Labor Relations Board Union, says the staff union has no comment on Robb’s proposal at this time. He tells In These Times that the executive committee of the staff union may take up the issue at its next scheduled meeting, by may also wait until Robb’s proposals are more formalized
The staff union represents more than 700 NLRB employees in the regional offices and a second independent union, the National Labor Relations Board Professional Association (NLRBPA), represents many staff members at Washington, D.C., headquarters. No representative of the NLRMPA could be reached for comment.
Robb’s proposal to demote employees and consolidate regional offices was outlined in a conference call Jan. 11, in which Robb described the plan to NLRB mid-level administrators. According to Gould, the administrators were not provided with a written version of Robb’s proposal, but were alarmed enough to respond with a written objection that has been published by Daily Labor Report.
“As you can imagine, the information you provided to the Regional Directors has created much uncertainty and has disheartened us … It was unclear to us how many Districts you envision, how many Regional Offices would remain, how many Regional Directors would remain in that position, what the supervisory ratio would be, and when you envision removing Regional Directors from the Senior Executive Service … However, any anticipated changes must be thoughtfully considered so that the great work of the Agency remains. We would like to work with you in developing changes that would be appropriate to meet our challenges,” the NLRB staffers wrote.
“The NLRB has a lot of problems as an agency. The number of cases they handle is way down from when I started work at the Philadelphia regional office (in 1997), but there are still not enough people to handle the work load,” comments Duff.
“Pay freezes and government shut downs have an effect [on morale],” Duff continues. “From what I am hearing now, things are actually worse than you think.”
This article was originally published at In These Times on January 31, 2018. Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.
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