NLRB General Counsel Directs Regions to Wait on Class Arbitration Cases Until Murphy Oil Is Decided

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This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

As reported in JD Supra, the General Counsel’s office of the National Labor Relations Board has issued a memorandum to regional offices in response to the Supreme Court’s grant of certiorari in Murphy Oil, Ernst & Young, and Epic Systems.  The instructions state that “in cases alleging that the employer is either maintaining and/or enforcing an agreement prohibited by Murphy Oil, Regions, after determining the case has merit, are directed to propose that the parties enter informal settlement agreements conditioned on the Agency prevailing before the Supreme Court in Murphy/Epic/Ernst & Young.”  In cases with multiple allegations at issue, the General Counsel’s office has directed the regional offices to enter into this type of informal settlement, but if other meritorious allegations cannot be settled, the regional officers are directed to move the litigation forward.  In instances in which the mandatory arbitration agreement contains an opt in/opt out clause or the agreement can be distinguished from the type of agreement in Murphy Oil, the General Counsel’s office has directed the regional offices to hold these cases in abeyance.

Today’s News & Commentary — February 8, 2016

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Yesterday, Republican lawmakers “proposed sweeping changes to Iowa’s collective bargaining laws” in the form of House Study Bill 84 and Senate File 213.  As the Des Moines Register explains, the new bills would limit mandatory negotiations for most public-sector union workers (public safety workers such as firefighters and police officers are exempted) to base wages only; negotiations over issues like health insurance and overtime would be prohibited.  The bills would also require unions to go through a certification process before each new contract negotiation.  Additional coverage is available at the New Republic, which also provides a brief historical overview of collective bargaining law in Iowa.

The New York Times reports that New York is attempting to revive the once-thriving, now-troubled garment industry.  City officials have increased efforts to create a new garment industry in Sunset Park, including a $115-million renovation of the city-owned Brooklyn Army Terminal, which will expand manufacturing space by 500,000 feet.  They have also partnered with the Council of Fashion Designers of America in order to assist companies with modernizing their manufacturing processes and workplaces.

Can Andy Puzder survive?  That’s the question Politico asks, noting that Puzder has faced allegations of beating his wife, began his career working for “one of the most notorious mob lawyers in the country,” and just admitted that he employed an undocumented immigrant as his house cleaner and didn’t pay taxes on her employment.  Despite these scandals, however, Puzder is “somehow . . . still standing.”

In other news, the New York Times observes that the appeals panel that heard oral argument yesterday in State of Washington v. Donald Trump “appear[ed] skeptical of Trump’s travel ban.”  The Times also notes that nearly 130 companies, most of them from the tech industry, filed an amicus brief in support of Washington State.

 

Today’s News & Commentary — February 7, 2016

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The Justice Department filed a brief in the 9th Circuit in support of its motion to stay the injunction barring enforcement of the order. An hourlong oral argument is scheduled for today. SEIU and the Washington State Labor Council filed two amicus briefs in support of the plaintiffs.The SEIU’s brief focuses on the stories of six individuals personally affected by President Trump’s travel ban.

Gov. Scott Walker spoke with Vice President Mike Pence last week about potentially taking parts of Wisconsin’s union law and public workforce overhaul and implementing it on the national level, reports the Washington Post. Wisconsin’s 2011 law law barred collective bargaining over working conditions and required workers to pay more for health care and pension benefits. Backlash over the law led to an unsuccessful attempt to recall Gov. Walker in 2012. Congressional Republicans have also introduced a national right-to-work bill which has yet to be debated.

Andrew Puzder, President Trump’s nominee for Secretary of Labor, faces further delay of his confirmation hearing after acknowledging yesterday that he employed an undocumented immigrant as a house cleaner. Mr. Puzder added that when he learned of her status, he terminated her employment, offered her assistance in getting legal status, and paid back taxes in full to the state of California and the I.R.S.  Continue reading →

Gorsuch’s Judicial Approach and Workplace Protection

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When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

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Guest Post: A Third Category Is Not The Right Path for Gig Workers – A View From The UK

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Hannah Reed works on employment and labour law policy for the UK Trades Union Congress (TUC).  She is currently attending the Harvard Trade Union Program

The recent Uber case in the UK was hailed by unions as a monumental victory, securing basic ‘worker’ rights to rest breaks, paid vacation time and the national minimum wage for 30,000 Uber drivers in the UK.

The decision is certainly welcome and may have useful implications in the US.  But no one should presume that the issue of rights for ‘gig workers’ is now settled or that legislators are off the hook. The case will be appealed.  Uber continues to argue its drivers are self-employed and that the tribunal decision would require it to adjust its business model.  The current ruling is also not binding for other groups of gig workers.

The intense media interest in the case has, however, helped to reignite policy debates on who should qualify for which statutory employment rights and whether protections should be extended to those working on the edge of the labour market.

Following pressure from unions, think tanks and civil society groups, the UK government has commissioned a review into modern employment practices.  The House of Commons Business Committee has similarly launched an inquiry into the Future World of Work and Rights of Workers.

The central question for both reviews is the whether the law needs to be modernised to respond to the new ‘gig economy’.  Despite the rapid expansion in temporary, insecure employment and complex supply chains, UK employment law remains wedded to the notion that permanent, stable employment is the norm.  Those that do not meet this norm are simply not protected.

But whilst some US commentators are advocating the creation of third category of worker in response to the growth of the gig economy, the opposite debate is starting to take place in the UK.

Continue reading →

Today’s News & Commentary — February 6, 2016

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Nearly a hundred tech companies—including Apple, Facebook, and Google—filed an amicus brief in the Ninth Circuit in opposition of the Trump administration’s recent immigration and refugee ban, according to the New York Times. The brief focuses on economic policy, arguing not only that immigrants create jobs in the United States, but also that the executive order will harm the companies’ ability to “recruit, hire, and retain some of the world’s best employees.” Several companies note that some of their employees have already been “ensnared in the Order’s travel restrictions.” The uncertainty the executive order has created, they argue, reduces the incentive for companies and potential employees to sponsor and obtain work visas.

The Times also reports on a recent study showing that the number of women and minorities on Fortune 500 board seats has increased—but only slightly. The number equals about 31% of total board seats; the rest are filled by white men. The Alliance for Board Diversity has set a target of 40% of board seats to be filled by women and minorities, but at the current rate of increase, that number will not be hit until 2026. “This is not acceptable,” said its chairman.

The New Republic has a feature today by history professor Erik Loomis with an attention-grabbing headline: “The Unions Betraying the Left.” The piece focuses on building trade unions, which have met in person with President Trump and were ecstatic about his decision to start construction back up in the Keystone XL Pipeline, the Dakota Access Pipeline, and the Mexican border wall. Loomis walks through the history of trade unions and industrial unions—and the tensions between creating jobs and progressive politics. “[T]he trade unions,” he writes, “seem incapable of realizing that the Trump administration is not their friend.”

Several outlets have weighed in on Secretary of Labor nominee Andrew Puzder. The Atlantic notes that Puzder still has not submitted the requisite paperwork to the Senate, causing labor committee chair Sen. Lamar Alexander to delay his hearing four times now. The Chicago Tribune has an in-depth piece contrasting the Department of Labor under the Obama administration and what it may be under Puzder. One large difference? Perspective. The Obama administration saw low-wage workers as struggling to support families; Puzder, on the other hand, may simply see them as teenagers earning pocket change.

Weekend News & Commentary — February 4-5, 2017

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The weekend started with some good news, with an above-expectations jobs report released Friday.  January saw 227,000 new jobs and modest wage growth; average hourly wages were up 3 cents at $26.  President Trump has already claimed credit for the strong numbers, predicting that job growth will “continue, big league,” under his administration.
 
Meanwhile, federal workers who want to express dissent against that same administration are turning to incognito forms of communication to do so, POLITICO reports.  In order to avoid rules covering workplace communications, EPA employees — fearing that the President’s incoming appointees will undermine existing policies — are now using an encrypted messaging app to talk strategy.  Similarly, Labor Department employees are using their private email accounts to circulate a letter asking senators to oppose Andrew Puzder’s nomination for Labor Secretary.
 
Speaking of which, the nominee — still facing delays in his confirmation process — continues to attract criticism.  The New York Times investigates Puzder’s early career as a lawyer, when he represented business owners and battled labor regulators in the courtroom.  In one of his biggest cases, Puzder defended his boss (a famous mob lawyer and casino owner) against allegations of squandering $25 million from union workers’ pension funds.
 
Puzder’s opposition to raising the minimum wage has also drawn fire, as the “Fight for $15” and related movements continue to build momentum.  Without a doubt, the importance of a “living wage” has become a central tenet of workers’ activism.  But where does it come from?  JSTOR Daily takes a step back from the debate, pointing out that workers’ acceptance of wage labor — a system that was still decried in the nineteenth century as “wage slavery” — is of relatively recent vintage.  Meanwhile, some commentators are of the view that minimum-wage hikes won’t be enough, in an age of automation, to secure the livelihoods of workers.  Writing for Jacobin, Mark Paul, William Darity Jr., and Darrick Hamilton argue instead for a federal job guarantee that would ensure employment for all.