Labor Law

  • 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.

  • December 20, 2016

    by Caroline Fredrickson

    Chuck Jones deserved better, especially from the president-elect who tweeted:

    “Chuck Jones, who is President of United Steelworkers 1999, has done a terrible job representing workers. No wonder companies flee country!”

    Roughly 75 minutes later, the soon-to-be head of state posted another tweet:

    “If United Steelworkers 1999 was any good, they would have kept those jobs in Indiana. Spend more time working-less time talking. Reduce dues.”

    For 30 years, Jones has represented workers in Indianapolis, including employees at plants owned by air conditioner manufacturer Carrier and Rexnord, a maker of values and ball bearings for heavy equipment. 

    On Dec. 15, Jones and other workers received notice that Rexnord would close the plant and move the roughly 300 jobs to Mexico despite a “no more” tweet from Trump. This notice from Rexnord followed similar news about layoffs from Carrier.

    2016 was a tough year for Jones. He spent the year in negotiations with manufacturers who in one instance expect to save $65 million by sending jobs in the U.S. to Mexico. In a Dec. 8 article about Carrier, Jones explained that “We couldn’t match that unless we were willing to cut wages to $5/hour and cut all benefits.”

  • December 1, 2016
    Guest Post

    by Ruben J. Garcia, Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

    Today, Dec. 1, was the day that the Obama Administration’s revision to the overtime rules would have gone into effect, were it not for a nationwide injunction issued by a federal court last week. The revised rule aimed to increase the amount under which employees would be automatically eligible for overtime pay for hours worked over 40 in a week. The rule required all employees earning below $47,476 to be paid time and a half for hours worked over 40 in a work week. Now, those employees will only be eligible for overtime if they also meet the tests for exempt duties as promulgated by the U.S. Department of Labor (DOL), a subject of frequent litigation because of the inherently subjective elements the exempt duties tests.

    On Nov. 22, a federal court in the Eastern District of Texas enjoined the DOL’s revision of the Rule which determine when an employee is “exempt” from the overtime pay requirements. Business groups complained primarily about the Rule’s index which would automatically keep the salary threshold in line with increases in cost of living—the absence of which has kept the minimum salary at a stagnant level for decades. States sued to block the rule principally on a federalism challenge, which was turned away by the federal court in short order based on Supreme Court precedents. 

    But the Court accepted the challenge of the states and the private plaintiffs under the Administrative Procedure Act, finding that the DOL went beyond its authority in setting the salary minimum at $47,476. On this theory, the DOL has a minimal role in filling out congressional intent about the extent of the overtime exemption for “bona fide executive, administrative, and professional” exemption from overtime requirements under the Fair Labor Standards Act of 1938. For decades, the DOL has set a presumptive salary threshold, beneath which workers are eligible for overtime regardless of their duties. Over that threshold, workers might be exempt if they perform sufficient duties. The revised rule did not affect the duties standards most recently revised in 2004 during the Bush administration. The 2016 revision, however, raised the salary threshold from $23,660 to $47,476. This doubling of the threshold beneath which employees are automatically entitled to overtime pay brought loud protests from the business community about how the increase would decrease the flexibility of employers and workers. Nonetheless, many employers increased employee salaries to ensure that workers would still be over the salary limit for the overtime exemption. Although the court expressly stated it was not challenging the authority of the DOL to set any threshold, the court did not say what salary level would have been reasonable.