The following article by Casey Quinlan was posted on the ThinkProgress website December 22, 2017:
Trump’s labor department has already started to erode progress on workers’ rights.
There have been a series of victories for labor rights in recent years. Graduate student workers at private colleges and universities now have the right to unionize. In New York, employers are no longer allowed to ask for an employee’s salary history — a question that often hurts women and people of color. And the Fight for 15 has scored wins in cities across the country.
But the Trump administration stands in the way of much of the progress labor activists are demanding. It may not be as noisy or ripe for attention-grabbing headlines as Betsy DeVos’ education department or Scott Pruitt’s Environmental Protection Agency, but Alexander Acosta’s labor department has rolled back a number of key Obama-era labor advances.
“Acosta is not a bomb-thrower,” said Jeffrey Hirsch, law professor at University of North Carolina at Chapel Hill. Unlike some of Trump’s other less traditional choices for agency heads, Acosta had already been confirmed by the Senate for three previous positions and was considered a safe choice for labor department secretary.
Still, it’s clear the department is now under a Republican administration.
The National Labor Relations Board (NLRB), which enforces fair labor practices, has an employer-friendly majority. The General Counsel of the NLRB is Peter Robb, a lawyer who management-focused firm Jackson Lewis wrote would “set the stage for the board to reverse many of the pro-labor rulings issued by the Obama board”. The Senate also confirmed to the NLRB William Emanuel, whose nomination was supported by corporate donors and industry groups like the National Retail Federation, U.S. Chamber of Commerce, and National Restaurant Association. Emanuel’s work previous focused on union avoidance tactics and among his former clients were Amazon, Target, Uber, and FedEx.
With these new additions, the Department of Labor has been busy dismantling protections for workers. Here are some of the biggest ways the Trump administration rolled back workers’ rights in 2017:
Less accountability for corporations like McDonald’s
One of the labor rollbacks that gained the most attention this year was the board’s decision to overturn the new joint employer standard that was supposed to make it easier for corporations to be held accountable for unfair labor practices at their franchises. Labor advocates expected the decision for some time after the department rescinded guidance that defines who a joint-employer is.
The Obama administration’s standard on joint employers went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business. McDonald’s has tried to avoid responsibility for violations like wage-theft for years. In 2016, McDonald’s settled a wage-theft class action and released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”
“Under the previous rule, you only needed to show [McDonald’s] had a theoretical amount of control. They reserve the right to control terms and conditions of work and controlled those conditions in an indirect manner like setting policies that other companies have to follow,” Hirsch explained. “The new case has said that no, you need actual direct control. When push comes to shove, it’s a matter of evidence and how much proof you have, so you may well still have a case against McDonald’s but you’re going to have to show that there is more actual control.”
Reduced protections for quality investment advice
In August, the Labor Department said it would like to delay a rule that would require financial advisors to act in the best interest of their customers and their retirement accounts. According to a federal court filing, the department wanted to delay implementation of the rule to July 2019. The full implementation of the rule is currently set for January 2018.
There are two standards investors have to be aware of right now: the fiduciary standard and suitability standard. A financial adviser operating under what is called the “suitability standard” is only required to make sure a client’s investment is suitable for the client’s finances, age, and risk tolerance at that point in time, but they don’t have a huge legal obligation to monitor the investment for the client. Under the fiduciary standard, an adviser must keep monitoring the investment and keep the customer’s overall financial picture in mind. In addition, advisers must disclose all of their conflicts of interest, fees, and commissions under the fiduciary standard. Right now, it’s easier for advisers to push investments that will make them money but are not necessarily in clients’ best interest, said Paul Secunda, professor of law and director of the labor and employment law program at Marquette University Law School.
“That rule has been substantially cut back, though how far back we’re still waiting to see. The current admin is in a holding pattern right now and my sense is that it could be cut back fairly dramatically even further,” Secunda said.
None of these labor department actions have been good enough for the financial industry, however. Plaintiffs in a lawsuit that included the Securities Industry and Financial Markets Association, the Financial Services Institute, the Financial Services Roundtable and the U.S. Chamber of Commerce, sent a Dec. 8 letter to the U.S. Court of Appeals for the Fifth Circuit. The plaintiffs said the delay of regulation shouldn’t hold up their appeal, where they argue the department does not have the authority to promulgate the rule, according to InvestmentNews.
Reduced worker safety
Experts on labor violations and the Occupational Safety and Health Administration told ThinkProgress they were concerned about how OSHA would respond to Hurricanes Harvey and Irma, especially since the Trump administration has slashed worker safety rules from the Obama administration.
Trump’s OSHA has left behind regulations on worker exposure to construction noise, combustible dust, and vehicles backing up in factories and construction sites, according to Bloomberg BNA. It also abandoned a rule that would change the way the agency decides on permissible exposure limits for chemicals. The July regulatory agenda did not list any new rule-making. The president’s 2018 budget would have killed OSHA’s Chemical Safety Board, which looks into chemical plant accidents, as well as the Susan Harwood grant program, which benefits nonprofits and unions that provide worker safety training.
“OSHA is taking a turn we usually see during Republican administrations, which means a lot less inspections and enforcement and a lot more trying to get employers to self-regulate or voluntarily comply which has not really worked that well historically,” Secunda said. “People who participate in these voluntary participation programs are usually employers who are already in compliance and those who continue to be bad actors are not really impacted by these voluntary programs. OSHA is about to be run by corporate America, which is obviously not good for employees.”
Deciding to let go of Obama-era overtime rule
In July, the labor department moved to roll back an Obama administration rule that would have expanded the number of workers eligible for overtime pay by 4.2 million. The department has not appealed a U.S. District Court in Texas that gave business groups the temporary injunction they wanted.
The current threshold for overtime pay is at just $23,660 a year, and the Obama-era rule would have nearly doubled that. In 1974, 62 percent of full-time salaried workers had a salary that allowed them to be eligible for overtime, but today, only 7 percent of full-time salaried workers earn a salary below this level, according toDavid Weill, dean of the Heller School for Social Policy and Management at Brandeis University who headed the Wage and Hour Division of the department during the Obama administration.
Referring to Acosta, Weill wrote in U.S. News, “Failure to appeal this flawed decision will leave millions working long hours with low pay and abrogate his responsibility to protect the hardworking people he and the Trump administration profess to care so much about.”
Labor department focus on ‘harmonious workplaces’
In one of the NLRB’s less discussed decisions this month, it overruled the Bush-era standard Lutheran Heritage Village-Livonia. This standard went into further detail on whether facially neutral workplace rules, policies, and handbook provisions could unlawfully interfere with Section 7 of the National Labor Relations Act. (Under Section 7, it’s unlawful for employers to interfere with employees’ organizing rights.) The NLRB provides the example of employers threatening, interrogating, or spying on pro-union employees or promising employees benefits if they stay away from organizing as unlawful activity under Section 7.
Under the 2004 standard, employers could have the violated the National Labor Relations Act by instituting workplace rules that could be “reasonably construed” to prohibit workers from accessing these rights even if the employers don’t explicitly prohibit the activities.
Hirsch said he was surprised by the decision to reverse a Bush-era decision. “To me, it seems like they’re doing more than they needed to, which makes me wonder if they’re trying to make a point.”
Hirsch added that the decision appeared to carve out certain types of rules, such as a civility code in the workplace, and say they were permissible. The decision referred to employers who wanted “harmonious workplaces” and cast any opposition to such a requirement to be impractical, but Hirsch said there needs to be a balance in NLRB decisions between clarity and flexibility.
“That can be problematic bevause they’re rules that depending on the history of what has happened in that particular workplace and it could actually be viewed as fairly chilling for those employees,” Hirsch said. “… Labor and management relations aren’t always harmonious. In fact, they are designed not to be in a lot of ways. Sometimes harsh language is used by both sides and sometimes that is OK, or we’re willing to tolerate that as part of the collective bargaining process rather than having violent strikes, like we did before the NRLA.”
‘Micro-unions’ are out of luck
The NLRB made another business-friendly decision this month when it decided that a unionized group of 100 welders and “rework specialists” at a manufacturing company with thousands of workers was improper. This means it will be easier for employers to oppose what are referred to as “micro unions” even though it can be advantageous for workers to organize this way. The decision went against eight federal appeals court rulings, according to Reuters.
LGBTQ workers’ not protected by Title VII
There is ongoing debate over whether LGBTQ workers have rights to ensure that they are treated fairly in the workplace under Title VII, part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In July, the Department of Justice undermined rights for LGBTQ people when it filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.
The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of protections against discrimination for transgender people. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. The courts have split at appellate level, Secunda explained, and most recently, the U.S. Supreme Court refused to hear a case on the issue.
Delaying “persuader” rule on union-busting
The department is trying to delay the “persuader rule,” which requires employers to disclose information on using third party labor consultants that specialize in creating statements to convince workers not to join unions and which the department pursued under the Obama administration.
The rule has been tied up in the courts due to a lawsuit brought by a coalition of business groups and states. In June, the department asked the U.S. Court of Appeals for the Fifth Circuit to put the department’s appeal of an order blocking the rule to be held in “abeyance.” On June 12, the Office of Labor-Management Standards published a notice of proposed rule making to rescind the rule in the Federal Register. The comment period closed on August 11. and the department is reviewing comments. Hirsch said he expects the rule to be flipped soon.
Remaining uncertainty over workers’ rights
There are a number of lingering questions for workers under the Trump administration.
As sexual harassment allegations continue to dominate national headlines, one big issue is that the Equal Employment Opportunity Commission (EEOC) seems under capacity to deal with reports of abuse. The EEOC has seen a doubling of visits to its website and law firms in Washington, D.C. say they have seen an increase in questions about sexual harassment cases, according to USA Today. The average wait time for an EEOC claim was 295 days in 2017, and it had a backlog of 73,508 complaints last year. The EEOC is already underfunded, labor experts say, and under the president’s 2018 budget proposal it would be even more strainedbecause it would eliminate 249 positions compared to fiscal year 2016 and absorb the Office of Federal Contracting and Compliance Programs, an office whose goals don’t align with the EEOC.
“They have cut back on the resources that the federal EEOC has and a lot of resources are not there for the state agencies, so with the uptick in sexual harassment complaints, the agency is kind of overwhelmed,” Secunda said
Also at risk in 2018 are graduate student workers. State laws already allow graduate students at many public universities to organize. In August 2016, the National Labor Relations Board ruled that graduate students at private universities count as employees, allowing those students to form unions that private universities have no choice but to recognize. And later that year, students at Columbia University voted to join the United Auto Workers union. Marvin E. Kaplan, an NLRB member, pledged to recuse himself from cases that involved Columbia University because his wife is employed by Columbia University trustees. Still, Secunda said if the right case comes up, and Kaplan is not recused, the NLRB could bring standards back to a 2004 ruling that said graduate students organizing would undermine graduate education.
“I would say graduate students and undergraduate students who want to unionize are in real danger,” Secunda said.
Lastly, public-sector unions’ right to collect fees is still up for debate. The plaintiff in Janus v. AFSCME is arguing that union members shouldn’t have to pay dues, because being forced to do so violates his First Amendment rights. In 20 states, government workers must pay agency fees if they decide not to join the union. Trump’s U.S. Supreme Court pick, Justice Neil M. Gorsuch is expected to decide against the unions, bringing conservatives a victory they could not enjoy in an earlier case on union fees due to Justice Antonin Scalia’s death last year.
“It could be that these fair share fees, which public employee unions depend greatly on, could be essentially declared unlawful at least in terms of them being mandatory. It requires unions do a lot more work to voluntarily collect fees for the services that they are providing,” Secunda said.
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