Labor Law

  • July 28, 2017
    Guest Post

    by Anne Marie Lofaso, Arthur B. Hodges Professor of Law, West Virginia University College of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    Labor law is no stranger to polarization. The National Labor Relations Board – that New Deal federal agency established by Congress to enforce the National Labor Relations Act (the principal federal law to regulate relations between unions and private-sector employers) – has long been a prime battleground for political polarization. Starting with the Eisenhower Administration’s confirmation of Guy Otto Farmerlawyer for the Bituminous Coal Operators’ Association (a multiemployer bargaining association formed in 1950 to represent coal operators in negotiations with the United Mine Workers) – to serve as Chairman in the mid-1950s, the Board has oscillated among (mostly) reasonable policy choices within the interstices and ambiguities of the NLRA’s statutory language.

    Last month, President Trump nominated Marvin Kaplan, a Kansan with extensive government (but no labor-litigation) experience, and William J. Emanuel, a Partner in the Los Angeles office of Littler Mendelson, to fill two vacancies on the National Labor Relations Board. On July 13, 2017, the Senate Health, Education, Labor, and Pensions Committee held confirmation hearings.  Their confirmation would return a pro-business, Republican-backed majority to the Board for the first time since the relatively halcyon days of George W. Bush’s presidency.

  • July 24, 2017
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    With key National Labor Relations Board and Department of Labor appointments nearing confirmation votes, the Trump administration’s labor policy will soon be in full swing. There is little doubt that that policy will involve some 180-degree reversals from the generally pro-worker positions of the Obama NLRB and DOL, and other more incremental retreats from Obama-era policies. This post discusses a few deregulatory changes that are likely to take effect over the next several months or years, and what they will mean for workers.

    The Department of Labor

    Under Tom Perez’s leadership, the Obama Department of Labor enacted a series of new rules designed to improve workers’ lives. Key among them was a rule that doubled the threshold below which employers would have to pay overtime to white-collar workers to $47,500. In addition to that signature achievement, other important Obama DOL rulemakings would have forced employers to disclose more of their spending on anti-union “persuaders,” and halved the permissible level of silica dust (which is linked to cancer and other lung diseases) to which construction workers can be exposed. The first two of these rules were enjoined before they could take effect; litigation regarding the last is pending in the D.C. Circuit.

  • July 6, 2017
    Guest Post

    *This piece originally appeared on onlabor.

    by Sharon Block, Executive Director, Labor and Worklife Program, Harvard Law School

    On Friday, the Trump Administration finally took a position in the Fifth Circuit litigation over the validity of the Obama Administration’s rule to raise the overtime salary threshold to $47,476 from the $23,660 level that has been in place since 2004. On the eve of the rule’s implementation in 2016, Judge Amos Mazzant (E.D. Tex.) had issued a nation-wide injunction enjoining the Department from enforcing the rule. Judge Mazzant found that the Department lacked the authority under the Fair Labor Standards Act to impose a salary threshold for determining overtime eligibility – effectively invalidating every overtime regulation since 1938. Just prior to Inauguration Day, the Obama Administration filed a brief in the Fifth Circuit asking the appeals court to reverse the district court’s decision and lift the injunction, asserting both that the Department had the authority impose a salary threshold and that it had set the threshold at an appropriate level.

    The Trump Administration walked away from defending the new salary threshold while attempting to maintain its authority to issue in its own rule. In its reply brief, the Department of Labor continued to defend its authority to set a salary threshold in conjunction with a duties test. The Department rejected Judge Mazzant’s assertion that the statute compelled that the Department adjudge overtime eligibility strictly on the basis of a salaried employee’s duties. The Department did not, however, ask the Fifth Circuit to affirm the validity of the Obama Administration rule. Instead, the Department signaled that it was abandoning the Obama rule and that it would be revisiting the question of the appropriate salary threshold, telling the court that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”

  • June 14, 2017
    Guest Post

    *This piece originally appeared on the Economic Policy Institute’s Working Economics Blog.

    by Marni von Wilpert, Associate Labor Counsel, Economic Policy Institute

    Yesterday, the Trump administration took yet another step against working people by announcing that the Department of Labor (DOL) will rescind its “persuader rule,” which would have helped level the playing field for workers by letting them know the source of the anti-union messages they receive during union drives.

    Unions help union and nonunion workers in countless ways. They raise wagesmake workplaces safer and close the gender pay gap. Most importantly, unions let workers have their voices heard on the job. The ability of people to join together to negotiate for better working conditions and pay is even more important in an era of forced arbitration, where women who are sexually harassed often cannot get justice in a courtroom and workers who are being cheated out of minimum wage often cannot file class action lawsuits. All workers deserve a voice in their workplaces and a union is one of the best ways for working people to make sure they are getting treated fairly on the job.

    But many employers fight unionization efforts at every turn, by hiring professional anti-union consultants—“persuaders”—to bust their employees’ organizing drives with sophisticated anti-union campaigns. Union-busting firms promise to equip employers with “campaign strategies” and “opposition research” and produce anti-union videos, websites, posters, buttons, T-shirts and PowerPoint presentations for employers to deploy against their workers’ unionizing efforts. Employers spend large amounts of money to hire anti-union consultants—sometimes hundreds of thousands of dollars.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on the Whistleblower Protection Law Blog

    by Jason Zuckerman, Principal, Zuckerman Law

    If Judge Neil Gorsuch is confirmed, he will play a critical role in construing laws that protect worker health and safety, including laws protecting whistleblowers who suffer retaliation for opposing illegal or unsafe conduct that jeopardizes public health and safety. According to the Bureau of Labor Standards, 4836 workers were killed on the job in 2015—on average, that is more than 93 a week, or more than 13 deaths every day. As the Occupational Safety and Health Administration (OSHA) is already severely understaffed and will soon be further weakened by a political appointee charged with gutting it, the last thing workers need is an activist judge who has expressed disdain for worker-protection laws. But that is exactly what we can expect from Judge Gorsuch.

    In a recent dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), Judge Gorsuch demonstrated that he will construe worker-protection laws as narrowly as possible and that he deems worker “health and safety” as “ephemeral and generic” statutory goals. His opinion also reveals that his alleged values-neutral approach to statutory construction is intellectually dishonest. The majority decision affirming the whistleblower’s win at the Department of Labor was based on the plain meaning of the statute, well-established precedent construing the statutory term at issue and the purpose of the statute. Judge Gorsuch’s dissent, however, was arguably activist in that it rewrites the statute. In other words, Judge Gorsuch does not check his policy preferences or values at the courthouse door and render value-neutral decisions based on the dictionary definitions of statutory terms. Instead, as this opinion demonstrates, his alleged strict textualism appears to be a cloak for his policy preferences, including his apparent disdain for worker protection laws.