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Labor Department scrubbed analysis that said its proposal would rob billions from workers

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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 dollarsaccording 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In December, the Labor Department proposed a rule that rescinded portions of Obama-administration tip regulations and would allow employers who pay the minimum wage to take workers’ tips.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.

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Here Are the 10 Worst Attacks on Workers From Trump’s First Year

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January 20th marks the one-year anniversary of President Donald Trump’s inauguration. Since taking office, President Trump has overseen a string of policies that will harm working people and benefit corporations and the rich. Here we present a list of the 10 worst things Congress and Trump have done to undermine pay growth and erode working conditions for the nation’s workers.

1) Enacting tax cuts that overwhelmingly favor the wealthy over the average worker

The Tax Cuts and Jobs Act (TCJA) signed into law at the end of 2017 provides a permanent cut in the corporate income tax rate that will overwhelmingly benefit capital owners and the top 1%. President Trump’s boast to wealthy diners at his $200,000-initiation-fee Mar-a-Lago Club on Dec. 22, 2017, says it best: “You all just got a lot richer.”

2) Taking billions out of workers’ pockets by weakening or abandoning regulations that protect their pay

In 2017, the Trump administration hurt workers’ pay in a number of ways, including acts to dismantle two key regulations that protect the pay of low- to middle-income workers. The Trump administration failed to defend a 2016 rule strengthening overtime protections for these workers, and took steps to gut regulations that protect servers from having their tips taken by their employers.

3) Blocking workers from access to the courts by allowing mandatory arbitration clauses in employment contracts

The Trump administration is fighting on the side of corporate interests who want to continue to require employees to sign arbitration agreements with class action waivers. This forces workers to give up their right to file class action lawsuits, and takes them out of the courtrooms and into individual private arbitration when their rights on the job are violated.

4) Pushing immigration policies that hurt all workers

The Trump administration has taken a number of extreme actions that will hurt all workers, including detaining unauthorized immigrants who were victims of employer abuse and human trafficking, and ending Temporary Protected Status for hundreds of thousands of immigrant workers, many of whom have resided in the United States for decades. But perhaps the most striking example has been the administration’s termination of the Deferred Action of Childhood Arrivals program.

5) Rolling back regulations that protect worker pay and safety

President Trump and congressional Republicans have blocked regulations that protect workers’ pay and safety. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees at risk.

6) Stacking the Federal Reserve Board with candidates friendlier to Wall Street than to working families

President Trump’s actions so far—including his choice not to reappoint Janet Yellen as chair of the Federal Reserve Board of Governors, and his nomination of Randal Quarles to fill one of the vacancies—suggest that he plans to tilt the board toward the interests of Wall Street rather than those of working families.

7) Ensuring Wall Street can pocket more of workers’ retirement savings

Since Trump took office, the Department of Labor has actively worked to weaken or rescind the “fiduciary” rule, which requires financial advisers to act in the best interests of their clients when giving retirement investment advice. The Trump administration’s repeated delays in enforcing this rule will cost retirement savers an estimated $18.5 billion over the next 30 years in hidden fees and lost earning potential.

8) Stacking the Supreme Court against workers by appointing Neil Gorsuch

Trump’s nominee to the Supreme Court, Neil Gorsuch, has a record of ruling against workers and siding with corporate interests. Cases involving collective bargaining, forced arbitration and class action waivers in employment disputes are already on the court’s docket this term or are likely to be considered by the court in coming years. Gorsuch may cast the deciding vote in significant cases challenging workers’ rights.

9) Trying to take affordable health care away from millions of working people

The Trump administration and congressional Republicans spent much of 2017 attempting to repeal the Affordable Care Act. They finally succeeded in repealing a well-known provision of the ACA—the penalty for not buying health insurance—in the tax bill signed into law at the end of 2017. According to the Congressional Budget Office, by 2027, the repeal of this provision will raise the number of uninsured Americans by 13 million.

10) Undercutting key worker protection agencies by nominating anti-worker leaders

Trump has appointed—or tried to appoint—individuals with records of exploiting workers to key posts in the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). Nominees to critical roles at DOL and the NLRB have—in word and deed—expressed hostility to the worker rights laws they are in charge of upholding.

This list is based on a new report out from the Economic Policy Institute.

This article was originally published at In These Times on January 19, 2018. Reprinted with permission.

About the Author: The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions.


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Here’s How Trump’s Labor Department Quietly Gave Bosses Even More Power Over Their Workers

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On January 5, the Department of Labor (DOL) quietly took a step to bolster the legal power of bosses over their workers by reissuing 17 previously withdrawn opinion letters. Developed at the end of George W. Bush’s final term, the letters had been withdrawn by the Obama administration, which discontinued the practice of issuing opinion letters altogether.

Opinion letters address specific questions submitted to the DOL by either employees or employers. The party then receives an official interpretation from the DOL Wage and Hour Division (WHD) detailing how the Fair Labor Standards Act (FLSA) and/or the Family and Medical Leave Act is implicated in their case. That opinion can then be used as guidance in future litigation. Other employers can also rely on an opinion letter, even if they didn’t request it themselves, as long as the facts are similar.

Critics of opinion letters point out that they take a long time for the labor department to craft (the George W. Bush administration averaged just 28 a year), and they only address one company’s specific situation—despite the fact that they can be used to the advantage of other employers in future cases.

There’s another big critique of opinion letters: They make it easier for employers to fight labor violation claims in court.

“Employers love opinion letters,” Patricia Smith, former Obama administration solicitor of labor, told In These Times. “They’re viewed by many as Get-Out-of-Jail Free cards.”

This sentiment was echoed by Michael Hancock, who managed the WHD opinion process for Bush’s final term. “It’s no secret that the opinion letter process largely serves the interest of employers; it gives them a legal defense if their practices comport with what the opinion letter says, even if the Department of Labor was wrong in what the opinion states,” he told Bloomberg last March. “It offers a serious and real significant defense to employers.”

Employers typically have the resources to pay their attorneys to talk with WHD officials before they request an opinion, so they can make sure they only ask if they are going to get a favorable result. The process is further skewed toward employers if the administration they’re requesting opinion from is employer-friendly—a fact that is certainly true of the Trump administration.

The Obama administration ended the established practice of issuing opinion letters and decided to issue a small amount of informal guidance documents instead. Last June, Trump’s labor secretary Alexander Acosta announced that he was withdrawing two of the informal guidance documents, a move that was hailed by business groups, as the documents both benefited workers. One of the letters dictated that subcontractors could be held liable if they failed to comply with FLSA requirements. The other offered an interpretation of “joint employers” and required some businesses to comply with the FLSA’s overtime rules.  That same month Acosta announced that opinion letters were returning.

Lawyers who say that they received favorable opinions for employers during the George W. Bush administration explained to Bloomberg how the process worked. Christopher A. Parlo, who represents management clients, said, “In the past you could go to DOL and lay out a scenario for them and they would give you their informal view on how that situation might play out. And if you didn’t believe that the result was one that would help your client or industry, you could choose not to ask for formal opinion. I thought that was a great process.”

The 17 Bush administration opinions that are being revived refer to a variety of topics, from year-end non-discretionary bonuses to salary deductions for full-day absences. Smith told In These Times that it was hard to know exactly what kind of impact these specific opinions would have, but said she thought that the move was at least partially symbolic: a signal to employers that the pro-business policies of Bush’s labor department have officially returned. “The message is, ‘We’re back,’” she said.

National Employment Law Project executive director Christine Owens issued a strong statement regarding the move, calling it “another example of how this administration is siding with big business to make it harder to get paid for working overtime and to make it easier for companies to reap the benefits of young workers’ labor without paying a cent for it.”

There’s a good chance that the WHD, which issues the opinion letters, will be soon be run by Trump nominee Cheryl Stanton, who is expected to be confirmed by the GOP-controlled Senate early this year. Stanton served as the White House’s principal legal liaison to the Labor Department under George W. Bush and spent years defending companies in labor cases. She’s also had an unpaid wage scandal of her own: In 2016 she was sued for allegedly failing to pay her house cleaners.

For the first time in over eight years, employers will be able to ask the White House for advice when they get tied up in legal battles. It seems quite probable that the pro-business forces dominating the Trump administration will have a lot to give.

This article was originally published at In These Times on January 18, 2018. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria


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2017 was a year of eroding workers’ rights

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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.


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Trump Dept. of Labor Rule Would Legalize Employers Stealing Workers’ Tips

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Last week, the Trump administration launched yet another front in its war on workers when the Department of Labor (DOL) proposed a new rule that would allow restaurants and other employers of tipped workers to begin legally pocketing their workers’ tips. 

The DOL’s proposed rule would ostensibly allow restaurants to take the tips that servers and bartenders earn and share them with untipped employees, such as cooks and dishwashers. This may sound like as a reasonable change, since kitchen staff are essential to the dining experience. Indeed, we do need to reform how restaurant workers generally and tipped workers specifically are paid, including reducing pay disparities between “front of the house” workers and kitchen staff.

But this proposed rule is not really aimed at fixing these problems. How do we know? Because, critically, the rule does not actually require that employers distribute “pooled” tips to workers. Under the administration’s proposed rule, as long as tipped workers earn the minimum wage, employers could legally pocket those tips for themselves.

Evidence shows that even now, when employers are prohibited from pocketing tips, many still do. Research on workers in three large U.S. cities—Chicago, Los Angeles, and New York—finds that 12 percent of tipped workers had their tips stolen by their employer or supervisor. Recent research also shows that workers in restaurants and bars are much more likely to suffer minimum wage violations—meaning being paid less than minimum wage—than workers in other industries. In the 10 most populous states, nearly one out of every seven restaurant workers reports being paid less than the minimum wage.

In some cases, this is the result of employers illegally confiscating tips. In others, it may be the result of employers asking staff to work off the clock, taking illegal deductions from paychecks or paying less than minimum wage to workers who may feel they cannot speak up—such as formerly incarcerated individuals, undocumented workers or foreign guest workers. These violations amount to more than $2.2 billion in stolen wages annually—and that’s just in the 10 largest states.

With that much illegal wage theft occurring, it should be clear that when employers can legally pocket the tips earned by their employees, many will. And while the bulk of tipped employees work in restaurants, tipped workers outside the restaurant industry—such as nail salon workers, casino dealers, barbers and hair stylists—could also see their bosses begin taking a cut from their tips.

The Economic Policy Institute estimates that under the Trump administration’s proposed rule, employers would pocket nearly $6 billion in tips earned by tipped workers each year. Trump’s DOL even acknowledges that this could occur, stating “The proposed rule rescinds those portions of the 2011 regulations that restrict employer use of customer tips when the employer pays at least the full Federal minimum wage.” In other words, so long as servers, bartenders and other tipped workers are being paid the measly federal minimum wage of $7.25 per hour, employers can do whatever they please with those workers’ tips. The DOL claims that this is actually a benefit of the proposed rule because it “may result in a reduction in litigation”—that is, fewer tipped workers being able to sue employers who steal their pay.

The fact that Trump’s DOL would so brazenly work to undermine protections for one of the lowest-paid, most poverty-stricken segments of the workforce says a lot about this administration’s values. The federal DOL is many workers’ primary source of protection when mistreated by an employer. In fact, 14 states effectively defer their wage and hour enforcement capacity to federal officials—meaning that outside of a private lawsuit, the federal DOL is these workers’ only option for recourse.

An administration that genuinely cared about working people would crack down on employers stealing from workers, not propose to legalize it.

This blog was originally published at In These Times on December 15, 2017. Reprinted with permission. 

About the Author: David Cooper is a Senior Economic Analyst at the Economic Policy Institute.


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Labor Department Proposes Legalizing Wage Theft

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The Labor Department is moving quickly to establish a new rule that would make tips the property of restaurant owners instead of workers.

This week, President Donald Trump’s administration proposed getting rid of an existing rule that makes tips the property of servers that restaurant owners cannot take away.

Under the new proposal, restaurant owners who pay their employees as little as $7.25 per hour could do whatever they want with tips left by customers for waitstaff. Restaurant owners could even keep the tips for themselves.

The federal minimum cash wage for tipped workers—at just $2.13 per hour—is already lower than for other workers. This low subminimum wage means that tipped workers depend on tips for virtually all their take-home pay after taxes, so they receive their take-home pay directly from customers. Not surprisingly, tipped workers have higher rates of poverty, discrimination and sexual harassment. Undocumented and immigrant workers in the restaurant industry are particularly vulnerable to wage theft.

The administration’s proposal would take money out of the pockets of some of the lowest-paid workers in our country and hand it over to restaurant owners, many of them big corporations.

Does that sound familiar? This is the same kind of reverse Robin Hood scheme as the disgraceful tax bill now making its way through Congress.

We cannot let them get away with this. The administration is trying to sneak this change through without hearing from workers, customers or even employers who disagree at a time of year when tipped workers are the busiest. The deadline for comments on this proposal is Jan. 4, 2018.

This blog was originally published at AFL-CIO on December 8, 2017. Reprinted with permission. 

About the Author: Kelly Ross is the deputy policy director at the AFLCIO.


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Tell the Labor Department Not to Repeal the Persuader Rule

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The Labor Department issued a proposal on Monday that would rescind the union-buster transparency rule, officially known as the persuader rule, designed to increase disclosure requirements for consultants and attorneys hired by companies to try to persuade working people against coming together in a union. The rule was supposed to go into effect last year, but a court issued an injunction last June to prevent implementation. Now the Trump Labor Department wants to eliminate it.

We wrote about this rule last year. Repealing the union-buster transparency rule is little more than the administration doing the bidding of wealthy corporations and eliminating common-sense rules that would give important information to working people who are having roadblocks thrown their way while trying to form a union.

AFL-CIO spokesman Josh Goldstein said:

The persuader rule means corporate CEOs can no longer hide the shady groups they hire to take away the freedoms of working people. Repealing this common-sense rule is simply another giveaway to wealthy corporations. Corporate CEOs may not like people knowing who they’re paying to script their union-busting, but working people do.

If the rule is repealed, union-busters will be able to operate in the shadows as they work to take away our freedom to join together on the job. Working people deserve to know whether these shady firms are trying to influence them. The administration seems to disagree.

A 60-day public comment period opened Monday. Click on this link to leave a comment and tell the Labor Department that we should be doing more to ensure the freedom of working people to join together in a union, not less. Copy and paste the suggested text below if you need help getting started:

“Working people deserve to know who is trying to block their freedom from joining together and forming a union on the job. Corporations spend big money on shadowy, outside firms that use fear tactics to intimidate and discourage people from coming together to make a better life on the job. I support a strong and robust persuader rule. Do not eliminate the persuader rule.”

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.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

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HELP Committee Should Ask Acosta for Commitments to the DOL Mission

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Ahead of Wednesday’s confirmation hearing for Alexander Acosta as Secretary of Labor, workers and workers’ advocates have been vocal about their concerns with his appointment. Workplace Fairness, the Leadership Conference on Civil and Human Rights, and Senator Elizabeth Warren, among others, are seeking assurances from Mr. Acosta about how he intends to protect workers and carry out the mission of the Department of Labor.

While we haven’t seen the level of outrage with the Acosta nomination that we saw with former nominee Andrew Puzder, Mr. Acosta still has a lot to answer for, and his relative lack of a record on workers’ rights issues is cause for concern. Will he protect against political influence and work to uphold the Department’s mission to promote worker welfare and assure workers’ benefits and rights?  Or will he toe the line of the Trump administration, fail to aggressively pursue investigations and litigation, and leave American workers out in the cold?

Transparency

Earlier this month, Workplace Fairness sent a position statement to the Senate HELP committee in charge of the confirmation hearing. Workplace Fairness focuses generally on advocating for workers’ rights, and more specifically on ensuring that America workers have access to comprehensive, easy to understand, information about their legal rights and remedies in the workplace. Workplace Fairness made clear that in light of recent issues with information going missing from government websites, Mr. Acosta should commit to ensuring that DOL continually provides transparency about his intentions going forward, and provides comprehensive information to the public about our rights in the workplace and how to enforce them.

Politicized hiring

Another issue sparking a call for assurances from Acosta is the potential for politicized hiring at the Department of Labor. The Trump administration is actively promoting an anti-worker agenda, from appointing a cabinet full of millionaires, to cutting the budget for programs that help workers, and working to repeal the Affordable Care Act which will dramatically impact all workers’ health benefits, even those insured through their employers. It is vital that the Secretary of Labor guard against politicized hiring that would turn the Department into an ally of the current administration rather than an agency committed to protecting workers. Acosta will most certainly have to answer questions about the 2008 report from the Office of the Inspector General which implicated him in politicized hiring at the Department of Justice when he was an Assistant Attorney General. The report found that he failed to properly supervise his deputy assistant who was clearly engaged in politicized hiring, in violation of civil service laws. He will need to explain to the HELP Committee how he intends to ensure that this type of hiring doesn’t happen at the Department of Labor. The Leadership Conference on Civil and Human Right recently issued a statement (joined by Workplace Fairness and 86 other organizations) specifically asking how Acosta would prevent political interference with the Office of Federal Contract Compliance, the Wage and Hour Division, and the Bureau of Labor Statistics as they carry out their missions to enforce rules and laws like the Fair Labor Standards Act and the Overtime Rule, and report vital statistics and information to the  American public.

Budget cuts

Senator Elizabeth Warren also raised grave concerns about a variety of issues, including politicized hiring and budget cuts at the DOL in her 23-page letter to Acosta, asking him to respond by March 27.  Senator Warren asks Acosta to detail how he intends to continue the work of investigating and litigating labor law violations under Trump’s proposed 21% cut to the DOL budget. She says

“I am also concerned about how you will respond to President Trump’s plan to cut more than 20% of DOL’s budget-the third biggest cut to any agency after the State Department and the Environmental Protection Agency…These draconian cuts will hobble your ability to run core parts of the agency, including the divisions that investigate and enforce the federal health and safety standards that keep workers safe on the job and the federal wage and hour laws that ensure that workers are paid fairly.”

The cut would bring the DOL budget to its lowest level since the 1970’s, according to the New York Times.

The upshot

It is expected that Acosta will be confirmed, as confirmation only requires a simple majority vote, and the Republicans have 52 seats in the Senate. Democrats and workers’ rights advocates hope to use this confirmation hearing as an opportunity to get some important assurances and commitments from Acosta on the record.

Many workers’ rights groups and other organizations, like the Economic Policy Institute, with its Perkins Project, are poised to pay close attention to what the Department does in the coming years, and to hold the Secretary of Labor accountable for the promises he makes. And as always, Workplace Fairness will continue to maintain free, up-to-date, comprehensive, easy to read information for the public about what their rights are in the workplace, and how to enforce them. These efforts will become even more critical in the days ahead as government agencies are forced to eliminate staff positions and enforcement activities, and potentially lessen their commitment to protecting the rights of workers.

SHANNON RUSZ has been associated with Workplace Fairness since 2009. Since 2014 she has worked as Content Manager for Workplacefairness.org, and most recently has taken on the role of Acting Executive Director of Workplace Fairness. Shannon is an attorney practicing in the Annapolis, Maryland area. She received her undergraduate degree from Virginia Commonwealth University and her Law degree from The George Washington University Law School.


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What Slashing the Labor Department Budget by 21 Percent Would Mean

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The Trump administration’s “budget blueprint” would devastate worker safety, job training programs and legal services essential to low-income workers. Its cuts include a 21 percent, or $2.5 billion, reduction in the Department of Labor’s budget.

The budget would reduce funding for or eliminate programs that provide job training to low-income workers, unemployed seniors, disadvantaged youth and for state-based job training grants. It eliminates the Occupational Safety and Health Administration’s (OSHA) training grants as well as the independent Chemical Safety Board. Also targeted for elimination is the Legal Services Corporation, which provides legal assistance to low-income Americans.

“Cutting these programs is cutting the safety net for the most vulnerable workers, those striving for the middle class,” said Matt Shudtz, executive director at the Center for Progressive Reform. “This budget would eliminate training programs for them, the kind of things people need to move up in the world. It is very anti-worker and anti- the most vulnerable workers.”

Judy Conti, National Employment Law Project (NELP) federal advocacy coordinator, didn’t mince words.

“This budget will mean more illness, injury and death on the job,” she said Thursday, the day the proposed budget was released.

Targeting programs that prevent injury and illness

The White House budget proposal justifies its enormous cuts to the Department of Labor by saying it focuses on the agency’s “highest priority functions and disinvests in activities that are duplicative, unnecessary, unproven or ineffective.”

The budget would close Job Corps centers that serve “disadvantaged youth,” eliminate the Senior Community Service Employment Program, decrease federal funding for state and local job training grants—shifting more financial responsibility to employers and state and local governments. The budget would also eliminate certain grants to the Office of Disability Employment Policy, which helps people with disabilities stay in the job market.

Also slated for elimination are OSHA’s Susan Harwood training grants that have provided more than 2.1 million workers, especially underserved and low-literacy workers in high-hazard industries, with health and safety training since 1978. These trainings are designed to multiply their effects by “training trainers” so that both workers and employers learn how to prevent and respond to workplace hazards. They’ve trained healthcare workers on pandemic hazards, helped construction workers avoid devastating accidents, and workers in food processing and landscaping prevent ergonomic injuries. The program also helps workers for whom English is not their first language obtain essential safety training.

“The cuts to OSHA training grants will hurt workers and small employers,” said David Michaels, former assistant secretary of labor for OSHA. “Training is a proven, and in fact necessary method to prevent worker injuries and illnesses. OSHA’s training grants are very cost effective, reaching large numbers of workers and small employers who would otherwise not be trained in injury and illness prevention.”

“Everyone, labor and management, believes that a workforce educated in safety and health is essential to saving lives and preventing occupational disease. That is the purpose of the Harwood grants,” said Michael Wright, director of health, safety and environment at United Steelworkers.

The White House says eliminating these grants will save $11 million, a miniscule fraction of the $639 billion the Trump administration is requesting for the Department of Defense.

“No words to describe how cruel it is”

Eliminating the Chemical Safety Board (CSB) would mean no independent federal agency dedicated to investing devastating industrial accidents such as the Deepwater Horizon disaster, the West Fertilizer plant explosion, Freedom Industries chemical release in Charleston, West Virginia, and the Chevron refinery fire in Richmond, California. Those are among the hundreds of cases CSB has investigated over the past 20 years or so.

“Our recommendations have 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 the State of Mississippi. The CSB has been able to accomplish all of this with a small and limited budget. The American public are safer today as a result of the work of the dedicated and professional staff of the CSB,” said CSB chairperson Vanessa Allen Sutherland in a statement.

“The cost of even one such accident would be more than the CSB’s budget over its entire history. And that calculation is only economic. The human cost of a catastrophic accident would be enormous,” said Wright. “The CSB’s work has saved the lives of workers in chemical plants and oil refineries, residents who could be caught in a toxic cloud, even students in high school chemistry labs.”

The budget proposal also jeopardizes essential legal support for low-wage workers. While not dedicated to employment issues, the Legal Services Corporation provides vital services to low-wage workers, including on issues related to workers’ compensation and other job benefits.

“Gutting the Legal Services Corporation,” said NELP’s Conti, “there are no words to describe how cruel it is, especially considering grossly underfunded the agency is.”

“The government should be investing in workers, their families, and communities, but instead this budget drastically cuts the programs meant to uplift them,” said Emily Gardner, worker health and safety advocate at Public Citizen.

The White House calls the budget proposal a “Budget Blueprint to make American Great Again.” On a call with reporters, Mick Mulvaney, director of the Office of Management and Budget, “this is the ‘America First’ budget” and said it was written “using the president’s own words” to turn “those policies into numbers.”

“This is not so much a budget as an ideological statement,” said David Golston, government affairs director at the Natural Resources Defense Council.

This article originally appeared at Inthesetimes.com on February 17, 2017. Reprinted with permission.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones, Ensia, Time, Civil Eats, The Guardian, The Washington Post, Salon and The Nation.


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Despite Some Union Support, Trump’s New Labor Pick Would Be Terrible for Workers

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President Donald Trump’s new pick to head the Labor Department is getting an early boost from a “divide-and-conquer” strategy against labor unions and their allies, even before his qualifications and background as a civil servant are scrutinized in a Senate confirmation hearing.

The nomination of R. Alexander Acosta was announced by Trump less than 24 hours after the president’s first choice for the job, hamburger-chain executive Andrew Puzder, dropped out of consideration. Puzder faced mounting Senate opposition, even from some conservative Republicans, because of disclosures that he had personally broken labor law by hiring an undocumented household servant, and also that he had been accused of spousal abuse many years ago.

Labor unions and Democratic Party leaders in Washington, D.C., had maintained a unified front against the Puzder nomination but that unity dissolved almost immediately with the announcement of Acosta’s nomination February 16. His first confirmation hearing, which was scheduled for this week, has been moved to March 22.

The first endorsement came from the International Union of Operating Engineers, followed by one from the International Association of Fire Fighters and then the Laborers International Union of North America (LIUNA) got on board. AFL-CIO President Richard Trumka even offered lukewarm praise, telling MSNBC News: “Well, we’re going to vet him, but he does have a history of enforcing the laws that protect workers, which is a real plus, whereas Puzder had a history of violating the rules.”

Acosta, 48, is currently dean at the Florida International University’s law school, a position he has held since 2009. A Harvard-trained lawyer, he held several appointed positions in the administration of George W. Bush. Before that, he was a labor lawyer at the giant law firm Kirkland & Ellis LLP, known for representing large multinational corporations.

Pro-labor Democrats in the Senate have been conspicuously quiet on Acosta’s nomination—at least thus far. Sen. Elizabeth Warren, a Democrat from Massachusetts, for example, was an outspoken opponent of Puzder but spokeswoman Alexis Krieg tells In These Times that the senator has no comment on Acosta.

Not so shy is Erik Loomis, assistant professor of history at the University of Rhode Island and a labor commentator at the progressive blog Lawyers, Guns & Money. He said:

“The selection of Alexander Acosta should provide no comfort for those who worked to reject Andy Puzder. Acosta has a lifetime of anti-union and anti-worker positions. Appointed to the National Labor Relations Board by George W. Bush, Acosta consistently decided with employers during his term. His support of Ohio’s attempt to suppress black voting in 2004 is deeply disturbing. That the AFL-CIO seems to think Acosta is as good as they are going to get under Trump is depressing, but perhaps realistic.”

William B. Gould IV, a law professor at Stanford University, agrees with Loomis’ analysis of Acosta’s tenure at the National Labor Relations Board (NLRB). He says Acosta had “a short, and for the most part uninspiring record” at the NLRB. Acosta served at the board for just eight months in 2003, a time when anti-union Republicans were in control.

Gould, a former NLRB chairman during the President Bill Clinton administration, cites several cases as examples of Acosta’s anti-worker positions:

  • Alexandria Clinic, P.A., 339 NLRB No. 162 (2003). Acosta voted that hospital strikers could be legally fired because they delayed the beginning of an otherwise legal job action by several hours.
  • Curwood Inc., a division of Bemis Company Inc., 339 NLRB No. 148 (2003). Acosta voted to ignore otherwise illegal threats made by the employer against workers trying to form a union. He also sanctioned otherwise illegal promises of new benefits to workers who would vote against the union.
  • Beverly Health, 339 NLRB No.161 (2003). Acosta voted against a corporate remedy in spite of the fact that the company had been found guilty of extensive misconduct on other occasions. His vote was in the minority.

“Curiously, one opinion of Acosta’s, while laudable and appropriate, will give him problems with the anti-immigrants,” among conservative Republicans, Gould adds.

In the case of Double D Construction, 339 NLRB No.48 (2003), Acosta stated that a worker who used a false social security number should not be considered guilty of committing a crime. Such misrepresentations are just part of the workday reality for undocumented workers, Acosta argued. This was the correct decision, according to Gould, but will likely be viewed differently by Republicans favoring a hard line against immigrants.

Equally problematic for worker rights advocates is Acosta’s tenure at the Department of Justice, where Acosta held appointed positions starting in 2003, says Saru Jayaraman, co-director of the pro-worker Restaurant Opportunities Center United.

There are at least two “troubling” episodes in Acosta’s Department of Justice career, Jayaraman says. First, Acosta is on record supporting efforts to restrict voting rights for African Americans in Ohio in 2004. In that case, Acosta was accused of exerting political pressure to help suppress voter turnout. “Voting rights are essential to labor rights, so I see this as important,” Jayaraman says.

So does the Lawyers’ Committee for Civil Rights Under Law, an advocacy group that has been fighting attempts to restrict voting laws. Committee President Kristen Clarke stated:

Mr. Acosta led the Civil Rights Division at a time that was marked by stark politicization, and other improper hiring and personnel decisions that were fully laid to bare in a 2008 report issued by the Office of Inspector General (OIG). The OIG found that actions taken during Mr. Acosta’s tenure violated Justice Department policy and federal law. Political and ideological affiliations were used as a litmus test to evaluate job candidates and career attorneys, wreaking havoc on the work of the Division. This egregious conduct played out under Mr. Acosta’s watch and undermined the integrity of the Civil Rights Division. It is hard to believe that Mr. Acosta would now be nominated to lead a federal agency tasked with promoting lawful hiring practices and safe workplaces.

A second troubling incident was a plea deal that Acosta negotiated while he was the U.S. Attorney for the Southern District of Florida in 2005, Jayaraman says. In that case, a man accused of having sex with underage girls and soliciting prostitution received a light sentence, apparently because the man was a wealthy businessman who could afford expensive lawyers, she claims.

“This was a sexual predator. This is very relevant to workers in the restaurant sector because sexual harassment and sexual abuse in the restaurant industry is just rampant,” Jayaraman tells In These Times. “Acosta does not take the issue seriously.”

But in the final analysis, “it doesn’t matter whether it’s Puzder or this guy (Acosta). The agenda is the same … The secretary of labor doesn’t set the policy, the president does,” says Jayaraman.

Loomis concurs.

He says: “Trump’s selections, both Puzder and Acosta, are inherently anti-worker. But so is Donald Trump, despite the unusual level of support he received from union members.”

This blog originally appeared at Inthesetimes.com on March 13, 2017. Reprinted with permission.

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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