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Another 2.1 million seek new jobless benefits. Pandemic Recession will stick it to millennials

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The Department of Labor reported Thursday that yet another2.1 million Americans, on a seasonally adjusted basis, applied for initial state benefits in the week that ended May 23.

Counting these new applications makes for a total of 40.5 million workers who have filed for initial benefits over the past 10 weeks. Add in the millions of Americans who are receiving benefits under the federal Pandemic Unemployment Assistance that covers gig workers, the self-employed, people who were working part time, and some other categories not eligible for regular unemployment, and the total out of work could be 47 million. Unprecedentedly gigantic as that number is, even it could be undercounting.

But if the total who have applied for benefits in both state and federal programs were comprised solely of those 47million, the official U3 unemployment rate—the one that gets the most headlines every month—would be about 30.2% based on April’s non-farm labor force of 156 million. That may seem outrageously high, but it is also the figure James Bullard, president of St. Louis Federal Reserve Bank said in March we might reach in the second quarter. (Note that the Bureau of Labor Statistics does not calculate the unemployment rate using benefit claims, but with a monthly survey. Its May report will be released next Friday.)

The labor market is clearly devastated. We just don’t know the full extent of the wreckage yet, and we won’t for another couple of months at least. Likewise, we won’t know how many of the negative effects will be temporary and how many longer lasting. 

One thing we do know. Under all economic conditions, different demographics are affected differentially. Prosperity doesn’t lift all boats, much less all boats equally. Recessions damage certain groups more than others, in great part because they have pre-existing economic conditions that make them more vulnerable—their age, their gender, their race. Deeper damage obviously lasts longer.

Vast numbers of the populace will be hurt by the Pandemic Recession. But millennials—born 1981-1996, by most definitions—are really going to get it in the wallet, with demographic groups within the millennial generation getting it worse than others, the less educated being vulnerable to far less severe economic perturbations.

Andrew Van Dam at The Washington Post wrote in detail about this Wednesday in a piece calling millennials the “unluckiest generation in U.S. history” under a subhead of Millennials have faced the worst economic odds, and many will never recover. Grimly he begins, “After accounting for the present crisis, the average millennial has experienced slower economic growth since entering the workforce than any other generation in U.S. history.” 

The research data he cited shows just how right had been those analysts who warned more than a decade ago that the graduating classes of the Great Recession would suffer long-term financial consequences from that disaster. “The average millennial has experienced slower economic growth since entering the workforce than any other generation in U.S. history.”

Gray Kimbrough, an economist with American University who we’ve previously and accurately branded a serial millennial myth debunker, points out the oldest millennials, such as himself, lived through the 9/11 terrorist attacks and entered the labor market in the recession that hit around the same time. They spent their early years struggling to find work during a jobless recovery, only to be hit by the Great Recession and another jobless recovery. And, of course, yet another recession.

“The story here is not just that it’s a bad recession, and that it’s hitting young people more, but that it’s hitting people who have already been hit,” Kimbrough said.

The impacts:

  • A report on ongoing research last year noted that in tracking 4.1 million people over a dozen years, it was found that millennial employment recovered over the period but millennial earnings did not. The average millennial lost about 13% of their earnings between 2005 and 2017, Gen X lost 9%, and baby boomers lost 7%. 
  • Millennials were forced by the Great Recession to choose worse jobs at the beginning of their work life, which suppressed their lifetime earnings. They also found themselves competing after a few years for entry-level jobs in their field against new graduates. Ana Kent, a policy analyst at the Federal Reserve Bank of St. Louis, told Van Dam, “If people enter the labor force during a recession, and they get into lower-paying jobs, that carries forward for much of their lifelong working careers. That’s going to have impacts on not only their income but their wealth and also their ability to save for a down payment and their ability to meet other lifetime goals.”
  • Millennials had lesser financial cushions when the Great Recession struck, and since they haven’t as a group recovered their full earnings, they have even smaller cushions now in the Pandemic Recession.
  • Millennials with a college degree aren’t too far behind in terms of wealth compared with previous generations when they were the same age. Their less-educated peers, however, have half the wealth that would be expected at this stage.
  • A National Bureau of Economic Research found that even after controlling for differences in age, education, marital states, and income, the wealth gap among millennials between African Americans and white Americans continues to grow.
  • Millennial Latinos, African Americans, and women are more likely than white male millennials to be economically pinched. They also are so far more likely to be unemployed during the Pandemic Recession. 

When considering statistics based on a defining characteristic like age, it’s easy to forget that a group’s overall trajectory is not the trajectory of all individuals within it. Some portion of millennials will no doubt make out just fine. It should also be obvious given our experience with the Great Recession that it’s only a small portion of the population in every age demographic that escapes the negative impacts in a downturn. Based on what we’ve seen in the past two and a half months, there is no reason to believe the Pandemic Recession will be any different in that regard.

This blog originally appeared at Daily Kos on May 28, 2020. Reprinted with permission.

About the Author: Timothy Lange is a member of the Daily Kos staff.


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2.1 million new unemployment claims filed last week, as workers still struggle to get benefits

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The ten-week total for claims reached 40.8 million, suggesting about a quarter of the workforce has lost jobs during the coronavirus pandemic.

Workers filed 2.1 million new unemployment claims last week, the Department of Labor reported, suggesting about a quarter of the workforce is seeking jobless aid to weather the economic crisis caused by the coronavirus. 

The latest figure indicates that the pandemic has pushed 40.8 million Americans out of work in just 10 weeks.

DOL also reported that another 1.2 million people applied for benefits under the new temporary Pandemic Unemployment Assistance programcreated for individuals who are typically ineligible for unemployment insurance, such as self-employed workers.

With those people added, the number of claims filed last week could be as high as 3.1 million, though there could be some overlap between the new program and traditional unemployment benefits.

“The pace of flooding has declined, but the labor market is still underwater,” Nick Bunker, Indeed Hiring Lab’s director of economic research, said in reaction to the numbers. He said the raw unadjusted number of new claims reported last week is still 15 times higher than pre-coronavirus levels.

California saw the highest number of new claims last week, reporting an estimated 212,343 new applications filed. New York followed with an estimated 192,193 new claims. 

Roughly half of those who applied for benefits since the beginning of the pandemic are now receiving them, according to Andrew Stettner, senior fellow at The Century Foundation. But legal advocates and worker groups complain that workers in many states are still facing long waits, glitches and little assistance in accessing the aid from state agencies, leading applicants in some cases, to give up. 

Three Uber and Lyft drivers, along with the New York Taxi Workers Alliance, filed a federal complaint this week against the state of New York, alleging the length of time it’s taking the state to process their claims compared to other workers has been “devastating.”

Behnaz Mansouri, an attorney at the Unemployment Law Project in Washington state, said roughly 60,000 people who’ve filed claims there are still waiting to receive benefits. She said self-employed workers are facing the greatest hurdles in getting jobless aid from the new federal program.

“They’re not only getting requests for more information they’re getting conflicting requests” for employment information, Mansouri said. “And these claimants don’t know what to do.” 

In Florida, where the state inspector general has launched a probe into its error-ridden unemployment assistance system, the state says about 83 percentof the 1.9 million claims its verified have been processed, an improvement from the less than 6 percent it reported mid-April

But Laurie Yadoff, an attorney at Coast to Coast Legal Aid of South Florida, said her clients complain their applications are still “pending” and are still unable to get through to state unemployment offices for assistance. 

“It’s been a tremendous struggle and a couple of my clients I have to keep calling them and telling them to hang in there,” Yadoff said. “They just keep saying, ‘What’s the point?’”

And not every state has implemented the new unemployment programs provided under the massive coronavirus relief package signed into law in March. 

According to DOL, so far, only 32 states have begun paying out the 13-week extension of unemployment benefits included in the CARES Act. Most states provide an average of 26 weeks of jobless benefits. 

While the number of Americans seeking jobless benefits has slowly declined over the past several weeks, economists forecast that the share of the workforce out of a job will remain high throughout the summer. 

“Although initial claims are declining, the pace may only be plateauing,” Glassdoor Senior Economist Daniel Zhao said in a statement. “If UI claims remain in the millions for the next few weeks, it may signal that relaxed state-mandated restrictions alone aren’t enough to staunch the flow of unemployed Americans.”

Kevin Hassett, senior economic adviser to President Donald Trump predicted the unemployment rate could potentially shoot north of 20 percent in the Bureau of Labor Statistics’ May jobs report out June 5. He expects the jobless rate will continue to climb in June, “but then after that it should start to trend down,” he told CNN on Sunday.

Despite warnings from economists that unemployment could remain high into the end of next year, Republicans in Congress have made clear that they won’t support expanding the enhanced unemployment insurance benefits provided under one of the coronavirus rescue bills.

Democrats want to extend that weekly $600 boost to unemployment insurance payments through the end of January. It is currently due to expire at the end of July.

Instead, National Economic Council Director Larry Kudlow said Tuesday the Trump administration “may well” support including a bonus to get workers back on the job in the next coronavirus aid package. He argues the enhanced unemployment payments are so high that they act as a “major disincentive to go back to work.”

This blog originally appeared at Politico on May 28, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.


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Trump’s New Labor Pick Eugene Scalia Will Be a Catastrophe For Workers Rights

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Image result for heidi shierholzWorking women and men need and deserve a Secretary of Laborsomebody who will look out for their interests, protect them from unscrupulous employers, set strong health and safety standards, and

safeguard their retirement security. Unfortunately, corporate lawyer Eugene Scalia, the man named by Image result for Lynn RhinehartPresident Trump to be the next Secretary of Labor, is not that person.

Scalia, a graduate of the University of Chicago Law School, is a partner at the Washington, D.C.-based law firm Gibson, Dunn & Crutcher, where he specializes in labor and employment law and administrative law. He Image result for Celine McNicholasis an active participant in the activities of the Federalist Society—a right-wing legal group. Scalia was nominated in 2001 by President George W. Bush to be Solicitor of Labor, but his nomination was blocked because of opposition over his extreme views against worker health and safety protections. Bush circumvented the Senate and installed Scalia as Solicitor through a recess appointment. Scalia returned to his law firm at the beginning of 2003.

Scalia has built his career representing corporations, financial institutions, and other business organizations—and fighting worker protections like health and safety regulations, retirement security, and collective bargaining rights. Scalia’s reputation as the go-to lawyer for corporations wanting to avoid worker and consumer protections is so notorious that a headline in a Bloomberg Businessweek profile on Scalia read, “Suing the Government? Call Scalia.” Here are just a few examples of cases where Scalia, on behalf of corporations and trade associations, has attacked worker and consumer protections:

Worker Health and Safety

Scalia led the fight on behalf of the U.S. Chamber of Commerce against regulations to protect workers from injuries caused by unsafe workplace design—known as ergonomics rules. According to Labor Department experts, the rules would have prevented 600,000 injuries a year. Scalia ridiculed the extensive science underlying the rules as “junk science par excellence” and “quackery,” and suggested that unions supported the rules as a ploy to increase membership. The rules were adopted by the Labor Department in 2000 but were overturned by a Republican Congress after Bush was elected president in 2000.

Fighting ergonomic protections is where Scalia made his mark, but his attacks on worker health and safety protections did not stop there. On behalf of United Parcel Service (UPS), Scalia opposed rules that would have required employers, and not individual workers, to pay for protective equipment that was needed to keep them safe on the job. And he represented SeaWorld when it unsuccessfully tried to fight off an Occupational Safety and Health Administration (OSHA) citation and fine for failing to protect Dawn Brancheau, a trainer at SeaWorld who was killed on the job by a killer whale.

Retirement Security

Eugene Scalia led the legal work attacking the Department of Labor’s fiduciary rule, which safeguarded workers’ retirement security by ensuring that investment advisers are acting in the best interest of workers and do not have a conflict of interest. The rule would have outlawed common practices such as financial advisers steering retirement savers toward investments that provide a good commission, but a lower rate of return. The Department of Labor estimated that conflicted investment advice costs workers $17 billion a year. Scalia attacked the rules on behalf of the U.S. Chamber of Commerce and other business interests, and persuaded a federal court to throw them out, leaving workers vulnerable once again to conflicted advice on their retirement investments.

Health Care

In 2006, the Maryland legislature passed a law requiring large corporations to spend 8 percent of payroll on either providing private health insurance or paying into the state’s Medicaid fund. The legislature adopted the law to ensure that large corporations like Walmart were paying their fair share of health care costs for their 16,000 Maryland employees, after studies in other states showed large numbers of Walmart workers on publicly funded health care because of the low wages paid by Walmart. On behalf of Walmart and other business interests, Scalia got the law struck down.

Collective Bargaining Rights

Scalia represented the Boeing Corporation when it was charged by the National Labor Relations Board with illegally transferring work to South Carolina from its unionized plant outside Seattle, Washington in retaliation for workers at the Washington plant exercising their rights under federal labor law, and specifically their right to strike. Boeing and Republicans in Congress embarked on a scorched-earth campaign against the NLRB complaint, holding an oversight hearing in South Carolina and subpoenaing the NLRB’s Acting General Counsel to appear, and introducing legislation to overturn the NLRB complaint even though it had not yet been adjudicated. Boeing eventually settled the complaint in connection with collective bargaining negotiations with the Machinists Union.

Consumer Protections

On behalf of financial institutions and corporations, Scalia has attacked numerous pieces of the Dodd-Frank Act, that was enacted to protect consumers against Wall Street’s power. Scalia challenged the Securities and Exchange Commission’s “proxy access” rule that would have given large shareholders a chance to put alternative candidates forward for a corporation’s board of directors through the corporation’s proxy voting materials. On behalf of business groups, Scalia succeeded in getting the rule overturned, thus denying unions and other institutional shareholders access to the proxy system to inform shareholders about candidates.

Workers with Disabilities

Workers at United Parcel Service who were returning to work following medical leave for on-the-job injuries sued UPS, alleging that the company had illegally failed to provide reasonable accommodations for their disabilities. Workers successfully won certification of a national class of similarly situated workers to pursue their claims, but Scalia, on behalf of UPS, got the class certification reversed on appeal.

Wage Security

Dealers in a Las Vegas casino sued their employer after the employer instituted a new rule requiring the dealers to share their tips with their supervisors. Scalia got the lawsuit thrown out, arguing that the dealers did not have a right to sue for their wages—that their only remedy was through the state commissioner of labor.

Defending Corporations Against Sexual Harassment Charges

Scalia represented the giant bank HSBC when it was sued for retaliating against an employee who reported sexual harassment of some of his co-workers by a manager. According to published reports, Scalia’s questioning of one of the sexual harassment victims was so aggressive that it brought the victim to tears.

Working people do not need a deregulatory wrecking ball as Secretary of Labor. They need somebody who will stand up for strong worker protection rules and aggressive enforcement of them. Unfortunately, the Trump administration seems determined to push through its deregulatory agenda, tearing down worker and consumer protections at the behest of large corporations. Former Secretary of Labor Alex Acosta reportedly lost favor with the Trump White House because he moved too slowly on reversing worker protections issued during the Obama Administration. Given his history of attacking worker and consumer protections at the behest of big business, there is plenty of reason to worry that Eugene Scalia will drive the deregulatory train, to the detriment of working women and men.

Scalia will have a confirmation hearing when the Senate returns in September. It is essential that Senators press Scalia for his views on the role of government regulation—and the role of the Department of Labor—in protecting working women and men. Senators should ask him to identify worker protections that he would promote, and whether there are cases he has been involved in on behalf of working people, not corporations. Senators should discourage Scalia from further weakening worker protections adopted during the Obama administration. These rules were adopted after extensive public input and are supported by comprehensive evidence demonstrating their value and importance to working people. They should not be weakened or overturned simply because anti-regulatory ideologues want it.

At the end of the day, Scalia’s answers to these questions are unlikely to persuade skeptics that he is the right man for the job, because words at a hearing cannot overcome a long career of attacking worker protections on behalf of corporations. But Scalia should be required to state on the record what his intentions are as Secretary of Labor and what he plans to do to protect working people, and, if confirmed, he must be held accountable.

This article was originally published at In These Times on September 24, 2019. Reprinted with permission.

About the Author: Heidi Shierholz is Senior Economist and Director of Policy at the Economic Policy Institute. From 2014 to 2017, she served the Obama administration as chief economist at the Department of
Labor.

About the Author: Lynn Rhinehart was General Counsel of the AFL-CIO from 2009 until her retirement in 2018.

Ms. Rhinehart joined the legal staff at the AFL-CIO as an Associate General Counsel in 1996.  She graduated magna cum laude from the Georgetown University Law Center in 1994.  Following graduation, she clerked for two years for the Honorable Joyce Hens Green of the United States District Court for the District of Columbia.  Ms. Rhinehart is a member of the District of Columbia bar.  From 1987-1990, Ms. Rhinehart worked as a professional staff member for the Senate Subcommittee on Labor, chaired by Senator Howard Metzenbaum (D-OH).  Ms. Rhinehart is the Executive Director of the Lawyers Coordinating Committee (LCC), a national organization of 2,000 union-side labor lawyers in law firms and legal departments.  She serves on the Board of Directors of the Peggy Browning Fund and the National Employment Law Project.

About the Author: Celine McNicholas is EPI’s director of government affairs and labor counsel. An attorney, her current areas of work include a wide range of workers’ rights issues, including labor and employment law, collective bargaining, and union organizing. She was a core member of EPI’s Perkins Project on Worker Rights and Wages Policy Watch, an online resource that tracked federal actions affecting working people and the economy during the first year of the Trump administration. McNicholas continues to monitor and analyze the Trump administration’s labor and employment policies.


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Trump’s acting Labor secretary pick feared by unions

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Ian Kullgren March 9, 2018. (M. Scott Mahaskey/Politico)Patrick Pizzella, tapped by President Donald Trump on Friday to step in as acting Labor secretary, is a polarizing figure beloved by conservatives for his pro-business views and disliked by unions and Democrats for a history of opposing worker protections.

Pizzella, who has served as deputy secretary of Labor since April 2018, will take over following Labor Secretary Alexander Acosta’s resignation amid controversy over a plea deal that he brokered for wealthy sex offender Jeffrey Epstein as a prosecutor in Florida. Pizzella comes “highly recommended by Alex,” Trump told reporters Friday.

But Pizzella’s ascendance to the top of the agency tasked with enforcing labor protections is something unions have long feared. He worked alongside disgraced lobbyist Jack Abramoff to shield the Northern Mariana Islands from federal labor laws in the 1990s, and generally has favored easing workplace regulations.

“If the president is serious about helping working people, selecting Patrick Pizzella wouldn’t be the way to demonstrate that,” Randi Weingarten, president of the American Federation of Teachers, said in a statement. “My dealings with Patrick have been limited, but his dubious track record, including his association with Jack Abramoff, doesn’t bode well.”

Some Democrats on Friday urged Trump to put someone else in charge of the Labor Department. Rep. Rosa DeLauro (D-Conn.) said in a written statement that Pizzella‘s “checkered past on these issues — including lobbying with convicted felon Jack Abramoff on behalf of sweatshops and pushing anti-worker policies as a member of the Federal Labor Relations Authority — make him unfit to lead the Department of Labor.”

This article was originally published by Politico on July 12, 2019. Reprinted with permission. 

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.


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Alexander Acosta stepping down as Labor secretary

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Ian Kullgren March 9, 2018. (M. Scott Mahaskey/Politico)Eliana JohnsonAnita Kumar

Labor Secretary Alexander Acosta is stepping down from his post, just two days after he held a news conference to defend a plea deal that he brokered for wealthy sex offender Jeffrey Epstein while serving as a U.S. attorney in Florida more than a decade ago.

President Donald Trump alerted reporters this morning of Acosta’s departure. “This was him, not me,” said Trump as Acosta stood beside him.

Trump, who saw Acosta largely as a source of favorable monthly statistics about unemployment and job growth, called Acosta “a great labor secretary not a good one” and “a tremendous talent. He’s a Hispanic man, he went to Harvard, a great student.” Trump indicated that he was satisfied with Acosta’s explanation for the plea deal in Wednesday’s news conference, saying, “He explained it.”

But Acosta has had a rocky relationship in recent months with other White House officials, including acting chief of staff Mick Mulvaney, over the perceived slow pace of deregulation at the department. And one person familiar with the situation said that although Trump initially thought Acosta handled the Epstein controversy well, over the last couple of days the president saw the negative press and didn’t like it.

“POTUS is not a fan of bad press, especially when other people make him look bad,” this person said.

Acosta, a 50-year-old Harvard-educated lawyer, came newly under fire for the lenient 2008 plea deal after Epstein was re-arrested July 6 in New York City and charged with sex trafficking. Under the earlier plea agreement, Epstein served only 13 months of an 18-month term and was permitted daily furloughs to go to the office. Epstein also was required to register as a sex offender and to pay restitution to his underage victims.

At the White House this morning, Acosta told reporters: “Over the last week I’ve seen a lot of coverage of the department of labor. And what I have not seen is the incredible job creation that we’ve seen in this economy. more than 5 million jobs, I haven’t seen that…. I do not think it is right and fair for this administration’s labor department to have Epstein as the focus, rather than the incredible economy that we have today.”

It’s an ignominious end for a son of middle-class Cuban immigrants who climbed his way up and made a name for himself in conservative social circles. Acosta led his resignation letter with mention of his parents and their desire to secure “the best opportunities for their son and grandchildren.”

“He’s been careful for his whole life, going to the right schools and connecting to the right people,” said a former administration official. “And now he’s just going to be remembered for Jeffrey Epstein.”

Things began to unravel for Acosta in November, when the Miami Herald published a lengthy reexamination of the case, and accelerated in February, when a district court judge ruled that the 2008 plea deal violated the Crime Victims Rights Act because Acosta never revealed the terms of the deal to Epstein’s victims before it was finalized. Also in February, the Justice Department opened an investigation into whether Acosta’s prosecution team committed professional misconduct in its handling the Epstein case.

Key details of Acosta’s plea agreement with Epstein were known to senators at the time Acosta was confirmed as labor secretary, though initially these seemed minor compared to domestic abuse allegations against Trump’s first pick for labor secretary, Andy Puzder. Acosta defended his actions at a congressional hearing this past April, saying he entered the case only after a state grand jury recommended that only one charge be filed against Epstein — a course of action that would have resulted in no jail time for Epstein, no restitution to victims, and no registration as a sex offender.

“At the end of the day Mr. Epstein went to jail,” Acosta said. “Mr. Epstein was incarcerated, he registered as a sex offender, the world was put on notice that he was a sex offender, and the victims received restitution.“

Acosta has suggested that he and his attorneys were worn down by Epstein’s all-star legal team, which included Alan Dershowitz and Kenneth Starr, the special prosecutor who investigated the Monica Lewinsky scandal in the 1990s. Among other tactics, the Epstein lawyers investigated the prosecutors looking for “personal pecadillos,” Acosta wrote in 2011 to journalist Conchita Sarnoff, whose 2016 book “TrafficKing” chronicled the Epstein prosecution. Acosta called these efforts “a year-long assault on the prosecution and the prosecutors.”

Acosta has also said that the full extent of Epstein’s alleged abuse wasn’t known at the time he struck the plea deal.

“Had these additional statements and evidence been known,” he wrote in a letter Sarnoff, “the outcome may have been different.”

Epstein aside, Acosta‘s relationships in the White House wore thin in recent months. Known for his careful demeanor, Acosta was privately accused by White House officials of slow-walking deregulatory efforts, such as business-friendly policies on overtime pay and shielding franchised companies from legal liabilities.

It took two years for DOL to issue a regulation outlining a program for privately led apprenticeships, a delay that irked the president’s daughter, Ivanka Trump. A former DOL official told POLITICO in June that she was “fed up” with Acosta.

Mulvaney curtailed Acosta’s rule-making authority shortly after taking office in January, requiring three White House aides to sit in on all the agency’s regulatory meetings. Then in May, the White House took the unusual step of ordering Acosta to fire his chief of staff, Nick Geale, after an internal review concluded that Geale’s interactions with employees — including frequent profanity-laced tirades — were damaging morale inside the agency.

Even as White House aides abandoned Acosta, the president himself remained content, in large part because of the favorable monthly employment statistics typically reported by DOL. Acosta went out of his way to praise the strength of the economy on social media, often mentioning the president by name.

“I feel very badly, actually, for Secretary Acosta,“ Trump said July 9. “I’ve known him as somebody that works so hard and does such a good job. I feel very badly about that whole situation.”

This article was originally published by Politico on July 12, 2019. Reprinted with permission. 

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.

He is a native of the mitten state and graduated from Michigan State University, where he ditched most of his classes to work on The State News, the student newspaper. He’s a big fan of mountains, for hiking in the summer and skiing in the winter.

About the Author: Eliana Johnson is a White House correspondent at POLITICO. She previously served as Washington editor of National Review, where she led the organization’s 2016 election coverage. She has worked as a producer at the Fox News Channel, as a research associate at the Council on Foreign Relations, and as a staff reporter for the New York Sun, where she covered higher education. She graduated from Yale College in 2006 with a degree in History.

About the Author: Anita Kumar serves as White House correspondent and associate editor, covering President Donald Trump and helping organize and guide coverage for POLITICO’s White House team.

Kumar joined POLITICO in 2019 after covering the White House for McClatchy’s chain of newspapers for six years. She reported on Hillary Clinton’s campaign for president in 2016 and Barack Obama’s re-election campaign in 2012.

Prior to that, she worked at the Washington Post, writing about Virginia politics, and the Tampa Bay Times, writing about local, state and federal government both in Florida and Washington. She started her career at the News & Advance in Lynchburg, Va. and worked briefly at the News & Record in Greensboro, N.C.

A native Virginian, Kumar grew up in Charlottesville and attended the University of Virginia.

Kumar was elected to the White House Correspondents’ Association board in July 2018 for a three-year term. She appears regularly on television and radio.


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Trump’s administration considers rule that would make it easier for businesses to exploit workers

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The U.S. Department of Labor plans to propose a rule that would reexamine worker classification, redefining who is given certain labor protections and who is not.

The boom of the so-called gig economy — as seen in ridesharing apps like Uber and Lyft and others like TaskRabbit and DoorDash — have raised questions about whether people providing these services should be classified as entrepreneurs or as workers.

Paul Secunda, professor of law at Marquette University, said the motivation for an employer-friendly Department of Labor to explore worker classification is very clear.

“Obviously employers want as many workers as possible to be independent contractors for the reasons that they don’t have to pay benefits, they are not subject to employment laws, and are at a real disadvantage bargaining with their employers,” Secunda said.

Secunda said such a rule would have profound effects on workers.

“It almost comes across as arcane and who cares? But if you can’t be considered to be an employee then all these laws are beyond your reach. You can’t organize. You can’t get minimum wage or overtime. You can’t get the protections of employment discrimination law. You can’t get consumer protections when it comes to pensions and health insurance. It’s really damaging. Those in the Trump administration, who are pro-business in a way that I don’t know we’ve ever seen before, are focused on it as a way to make it less expensive for these large companies to have labor and not pay for it.”

Bloomberg Law broke the news that the department would be looking at the issue after a spokeswoman told the outlet it will update the joint employer rule and then look at worker classification.

There are different tests and factors to determine whether a worker is an employee or contractor. The National Labor Relations Act uses what is known as a common law definition based on how much control the employer has over the worker, including factors such as bringing your own tools to a job, whether you get a W-2 or Form 1099, and how much direction you receive on how to provide the service or product.

Under the Fair Labor Standards Act, which the Labor Department administers and enforces, there is an economic realities test that asks how dependent someone is on the employer in question. The more dependent the person is, the more likely that person is an employee and not an independent contractor.

In January, the National Labor Relations Board (NLRB) ruled that the transportation service SuperShuttle was correct to call its airport van drivers contractors instead of employees. The NLRB said it was considered entrepreneurial opportunity since workers set their own schedules and have their own work vans.

Secunda said the ruling was a “radical departure” from the common law definition of employee that has been used under the NLRA for decades.

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“They’ve added a new factor called entrepreneurial opportunity which is nowhere to be found in any of the list of factors I’ve ever seen for the common law control. You could argue that some of these factors hint at such entrepreneurial control but it’s never been either discussed as the centerpiece of the test as it was in the SuperShuttle case nor has so much emphasis been put on it as it was in the SuperShuttle case,” Secunda said. “It is not just happenstance that this case was decided by the NLRB and then in the regulatory agenda you see the Department of Labor is thinking of trying to eventually change the definition or factor test in a way that is not surprisingly going to favor employers.”

One in five Americans is a contract worker, so the debate over who is an employee or contractor will only grow in importance. People who are considered freelancers, on-call workers, temp agency workers, and contractors increased from 10.5 percent to 15.8 percent between 2005 and 2015, according to Harvard and Princeton economists.

“It’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited.”

Many of these workers have pursued lawsuits in the past few years. A part-time driver sued Grubhub in 2015 and argued that he that was entitled to minimum wage, overtime pay, and reimbursement of expenses, since the company had a lot of control over his schedule. But last year, a U.S. District Court judge disagreed and said that because he never went through training, wore a uniform, or received performance evaluations, he wasn’t a traditional employee.

A federal judge ruled last year that Uber doesn’t have enough control over Uber Black, a limo service, to be considered an employer under the FLSA, since drivers are free to run personal errands, take naps, and smoke cigarettes between rides. In 2017, DoorDash, a food delivery company, reached a settlement with workers after they said they were misclassified as independent contractors. Although the agreement provided more protections for workers and clearer policies, it did not result in a change in worker status.

The online gig economy is “growing rapidly,” economists Seth D. Harris and Alan Krueger explain in a 2015 report on the modernizing labor laws. Harris and Krueger propose that there be a new legal category of workers called independent workers for people like Lyft drivers, who are neither traditional employees or independent contractors, since they have similarities to both categories. Although they can, in theory, choose when and whether to work, there are restrictions imposed by the company on how much they can charge customers. They suggest “extending many of the legal benefits and protections found in employment relationships to independent workers.”

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.

This article was originally published at ThinkProgress on February 6, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering education and labor issues. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.


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Undermining Worker Safety — Despite Laws and Shutdowns

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Regulatory doo doo — to use the technical term — seems to be where the Department of Labor is finding itself these days.  And Democrats in Congress along with the Department of Labor’s Inspector General are not amused.

At the request of Senator Elizabeth Warren (D-MA) and Congresspersons Bobby Scott (D-VA), Mark Takano (D-CA), Rosa DeLauro (D-CT) and Lucille Roybal-Allard (D-CA), DOL Inspector General Scott Dahl has agreed to Audit the Department of Labor’s regulator process. The main focus will be on the Wage and Hour Division’s proposal to allow 16- and 17-year-olds to operate power-driven patient lifts in nursing homes without supervision, as well as OSHA’s recent decision to roll back parts of the agency’s electronic recordkeeping regulation.

Regulations (and OSHA standards) are important. Congress passes laws like the Occupational Safety and Health Act or the Mine Safety and Health Act or the Clean Water Act, which give agencies a general mandate to protect workers and the environment. But regulations put meat on the bones of the laws. The OSHAct gives employers the legal responsibility to maintain safe workplaces and gived OSHA the authority to set standards and cite employers who violate those standard. And it’s the regulatory process that enables OSHA to issue those specific standards — like those protecting workers from falls, amputations, silica or asbestos exposure.

Rolling back “burdensome” regulations (along with cutting taxes and appointing more conservative federal judges) are the main reasons that otherwise more-or-less sane Republicans continue to support an ignorant, racist, malignant narcissist in the White House.

The business community and Republicans in Congress generally hate regulations, which is why you almost never hear them mention the word “regulation” without the words “job-killing” preceding it. In fact, rolling back “burdensome” regulations (along with cutting taxes and appointing more conservative federal judges) are the main reasons that otherwise more-or-less sane Republicans continue to support an ignorant, racist, malignant narcissist in the White House.

And there’s a process for issuing regulations and standards.  All government regulatory activity falls under the Administrative Procedure Act which ensures that agencies follow some basic steps when they issue new regulations or change existing regulations and lays out the basis for regulatory actions in the public record. New regulations or regulatory changes may not be “arbitrary, capricious, an abuse of discretion” and must be based on evidence on the record. The Occupational Safety and Health Act has many additional rules for issuing OSHA standards.  Regulations that were not developed (or rolled back) according to proper administrative procedure can be struck down by the courts.

In addition, the Data Quality Act requires the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.”

The legislators’ letter asked the Labor Department’s Inspector General (OIG) to investigate whether DOL had deviated from agency regulatory and data quality requirements when it issued the patient lift proposal. According to Deborah Berkowitz at the National Employment Law Project

In order to support this proposal, the Labor Department cited a ‘survey’ of Massachusetts vocational programs that purportedly demonstrated that the current policy ‘restricts’ young teens from being hired to work in nursing homes. Although the Department has ignored repeated requests from Congress and advocates to provide the survey for public review and comment, NELP has obtained a copy.

It became immediately clear why the Department wouldn’t produce the document. This seven-year-old survey, conducted using Survey Monkey, compiled responses from a scant 22 vocational programs in Massachusetts. Half the respondents did not even know what the policy was in the first instance.

The bottom line is that in this administration, when it comes to undermining worker safety and health, neither shutdowns, nor furloughs, nor well-established federal laws governing regulation can stop or even slow the priorities of the business community.

And as Suzy Khimm at NBC News points out, the child labor proposal is not the only area in which DOL is having problems:

The Labor Department is facing legal challenges over other deregulatory actions affecting workers. Last week, the department undid an Obama-era regulation requiring certain employers to submit detailed reports of workplace injuries electronically, arguing that it risked violating workers’ privacy. Last year, the department made it easier for small businesses and self-employed people to buy health insurance that does not comply with the Affordable Care Act. Both changes have spurred lawsuits alleging that officials failed to follow legally required procedures for rule-making.

Dahl is already investigating the Labor Department’s handling of a proposal to allow restaurant managers and owners to take workers’ tips and place them in a tip-sharing pool that includes bosses. Bloomberg Law reported last year that the administration hid its own projection that the change would allow management to skim $640 million in gratuities. (The administration later backed off the change.)

Meanwhile, the White House Office of Information and Regulatory Affairs (OIRA) has come under criticism not only for how agencies regulate, but when the regulate. As we’ve noted several times before, OSHA — and apparently the White House — were in such a hurry to roll back OSHA’s electronic recordkeeping rule that they managed to rush it out right in the middle of the government shutdown.  As House Education and Labor Committee Chair Bobby Scott said in a statement

“It is notable that despite the many important issues being neglected during this partial government shutdown, the administration found time to finalize a rule that shields employers from accountability for the health and safety of their employees. President Trump pledged to defend the American worker, but this is yet another decision that violates that promise.”

OIRA decided that it was allowed to move regulatory actions forward during the shutdown as long as the regulatory actions came from a funded agency (like the Department of Labor).  Some find that interpretation rather dubious. Quoted in Government Executive, Sam Berger, an attorney who worked for OMB during the 2013 shutdown now with the Center for American Progress,

pointed to the shutdown procedure standard being used in the Federal Register, as published in a bulletin by the National Archives and Records Administration. Under the Jan. 14 Justice Department guidance, he said in an email to Government Executive, “funded agencies [must show] delaying publication until the end of the [shutdown] would prevent or significantly damage the execution of funded functions at the agency.”

For OIRA, he said, the standard “is the same for any part of government that isn’t funded, but that works with funded agencies. If the rule is excepted (for example, necessary to protect life and property) then OIRA can bring staff on to review,” he added, arguing that OIRA can’t justify bringing back furloughed employees to process the OSHA rule. If the agency is funded (as is the Labor Department), “then OIRA can only bring staff on if not moving forward with the rule during the shutdown would prevent or undermine the funded function.”

The bottom line is that in this administration, when it comes to undermining worker safety and health, neither shutdowns, nor furloughs, nor well-established federal laws governing regulation can stop or even slow the priorities of the business community.

This blog was originally published at Confined Space on February 1, 2019. Reprinted with permission. 
About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and I spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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House Democrats plan to grill Labor Department officials about tip and child labor policies

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After winning back the House on Tuesday, Democrats plan to grill Labor Department officials about some of their proposals, which they have safety and transparency concerns about.

Democrats have long had questions about the U.S. Department of Labor’s approach on issues such as child labor in health care jobs and not informing the public about an analysis that did not favor one of their proposed regulations on tipping.

Rep. Bobby Scott (D-VA), who will be chair of the Education and Workforce Committee, told Bloomberg Law about his plans and said, “If you’re having a regulatory change, the law requires you to produce the evidence to support the change.”

In December, the department proposed a rule rescinding parts of Obama-era tip regulations and allow employers who pay the minimum wage to take workers’ tips. The department said it 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 wouldn’t actually prevent employers from just keeping the tips.

According to Economic Policy Institute research, 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 doing an internal analysis of the proposal, Department of Labor decided to scrub it from its proposal after it also discovered workers would be robbed of billions of dollars. Staff then changed the methodology to get a more favorable analysis, but Labor Secretary Alexander Acosta and his team were reportedly unsatisfied with even that analysis, so with the approval of the White House, they took it out. Later reports from Bloomberg showed that White House’s Office of Information and Regulatory Affairs (OIRA) staff said the proposal of changes to tipped worker pay rules should include professional estimates of the impact for tipped workers but Mick Mulvaney, director of the Office of Management and Budget and acting director of the Consumer Financial Protection Bureau, worked with Acosta to scrap the analysis entirely, Bloomberg Law first reported.

In December, Saru Jayaraman, president of Restaurant Opportunities Centers United, a non-profit that advocates for improvement of wages for low-wage restaurant workers, said the proposed rule would push a majority-women workforce “further into financial instability, poverty, and vulnerability to harassment and assault.”

Democrats on the committee, as well as other Democrats in Congress, wrote a letter to the department in February stating that if the department withheld the analysis, it “raises serious questions about the integrity of the Department’s rulemaking process.” They also demanded more information about meetings and further communication about the analysis.

Democrats also wrote a letter to Acosta and Mulvaney in August citing their concerns about a department proposal to allow teenagers to work more hours in health care positions that under current regulations, are considered unsafe for them. The department has said that exempting power-driven patient lifts from these regulations makes sense because use of the equipment would be “safer for workers than the alternative method of manually lifting patients.”

The department has said that teenagers would have to receive 75 hours of training and at least 16 hours of supervision by a nurse in the proposed rule.

But in their August letter, Democratic lawmakers said they want scientific reviews from the National Institute for Occupational Safety and Health.

“While we believe in expanding job opportunities for young workers, I am sure you would agree that this should not be done at the expense of their health, safety, and lives,” Democratic members of Congress wrote.

This article was originally published at ThinkProgress on November 10, 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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A Dark Veil

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The Trump administration on Tuesday rescinded the Department of Labor’s “persuader rule” requiring companies to disclose any consultants or lawyers contracted for anti-union persuasion efforts. The most recent in a series of anti-worker regulatory rollbacks, the decision has drawn harsh condemnation from union leaders and working people.

When the Labor Department issued the rule in 2016, it was hailed as a win for workplace transparency. Workers would have the right to know when their bosses hired outside union-busters to influence organizing decisions.

Then-Secretary of Labor Tom Perez explained it would “ensure that workers have the information they need to make informed decisions about exercising critical workplace rights….Informed decisions are the best decisions.”

In the wake of Tuesday’s announcement, AFL-CIO National Media Director Josh Goldstein slammed the administration’s decision to shield the “sinister practices of employers and their hired guns.”

“By repealing the persuader rule, the Department of Labor is siding with corporate CEOs against good government and transparency,” Goldstein said. “They have thrown a dark veil over the shady groups employers hire to take away the freedoms of working people.”

This blog was originally published at the AFL-CIO on July 19, 2018. Reprinted with permission. 


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Kavanaugh: Threat to Workers and to OSHA

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While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment.

In 2010 a killer whale dismembered and drowned a Sea World trainer, Dawn Brancheau, in front of hundreds of horrified men, women and children looking forward to a day of fun and frolic with sea animals. The whale that killed Brancheau had been implicated in three previous human deaths.

OSHA issued a $70,000 willful General Duty Clause Citation against Sea World and ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA proved that Sea World and its employees knew from previous incidents and close calls that the all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous.  Experts also described a feasible means of protecting employees — actions that Sea World in fact implemented following Brancheau’s death.

The Occupational Safety and Health Review Commission upheld OSHA’s citation, and Sea World appealed to the Court of Appeals. The D.C. Circuit court decided 2-1 in favor of OSHA. The Court found that  “There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable,” and that there was substantial evidence that there were feasible means to protect employees without impacting the business. The majority opinion upholding OSHA’s action was written by Circuit Judge Judith Rogers. Also supporting OSHA was Chief Judge Merrick Garland.

The lone dissenter, opposing OSHA’s citation, was Circuit Judge Brett Kavanaugh.

According to former OSHA Assistant Secretary David Michaels, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.”

Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.  —  David Michaels

Garland, as you may remember was nominated to the Supreme Court in 2016, following the death of Supreme Court Justice Antonin Scalia. Republicans, led by Senate Majority Leader Mitch McConnell, infamously refused to consider Obama’s nomination, allowing Trump to appoint Neil Gorsuch to the Court. And the lead attorney representing Sea World was Eugene Scalia, son of deceased Justice Antonin Scalia.

Are Whale Shows A Sport Like Football?

Kavanaugh calls OSHA’s action “arbitrary and capricious” because regulating the safety of killer whale shows is allegedly no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing — things in which OSHA has never involved itself.  And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, there would allegedly be no Sea World if there was no close human contact with killer whales.

One problem with this argument, as Rogers points out, is that no one — except Kavanaugh — claims that whale shows are a sport where you are there to see who “wins.”

Or, to put it more bluntly, people go to boxing matches to watch people punch each other, and go to football games to watch one team physically stop the other from scoring. But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures. Killer whale shows are not supposed to be modern gladiatorial contests where the audience looks forward to seeing whether the trainers will successfully keep their limbs attached or finish the show bleeding and dead at the bottom of a pool.

Not even Sea World made the football/car racing/boxing analogy, Rogers and Garland point out. By making that argument, Kavanaugh is just makin’ stuff up — adding his own opinions on matters that weren’t even part of the case.

Second, as the majority opinion points out, “physical contact between players is ‘intrinsic’ to professional football in a way that it is not to a killer whale show.” Spectators can take pleasure from a whale jumping out of the water and doing back flips even without close personal contact with a human trainer.

In fact, the show went on even after the OSHA citation. Following Brancheau’s death, Sea World implemented many of the controls that OSHA recommended in its General Duty Clause citation — and still managed to attract customers to the park — and even to the killer whale shows — without the close personal contact.

Hostility Toward OSHA

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. Comparing killer whale shows to football, boxing, car racing, as well  as other “extremely dangerous” sports such as “Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball….” etc., etc., Kavanaugh objects to OSHA’s “paternalistic” intervention because “the participants in those activities want to take part.”

And then goes on to state (cue the heroic music)

To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.

He then asks:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.

Happily, Garland and Rogers were more knowledgeable about the Occupational Safety and Heath Act than Kavanaugh. They point out that the OSHAct puts the duty on the employer to create a safe workplace, not on the employees to choose whether or not they want to risk death — especially when the employer can make the workplace safer.

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.

Rogers and Garland were forced to remind Kavanaugh that the employer’s duty under the OSHAct isn’t reduced by “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Workers Comp laws, originally passed in the early 20th century, were supposed to be no-fault. It didn’t matter who was at fault, if the worker was hurt, the worker got compensated.  And the OSHAct, passed in 1970, further states clearly and unequivocally that the employer is responsible for ensuring that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and sets up a mechanism to enforce the law and penalize employers who violated it.  Even if the macho employee wants to defy death, the law states that the workers may not work at heights without fall protection or go down into deep trenches without shoring. And it’s the employer’s job to make sure that employees are not endangered.

Did Brancheau enjoy her job? Undoubtedly.

Did she “willingly accept the risk of violent death as part of their job?”  Unlikely. And legally irrelevant.

Did she deserve a safe workplace? Absolutely.

Nothing New Under the Sun?

Kavanaugh also objected to OSHA’s citation because the agency allegedly “departed from tradition and stormed headlong into a new regulatory arena.”

Well, first, Congress put the General Duty Clause into the OSHAct to address “unique” recognized hazards for which there is no OSHA standard.

Second, objecting to OSHA “storming into a new arena” brings back memories of the arguments used by previous OSHA heads, politicians and the health care industry when unions petitioned the agency in the late 1980’s for a bloodborne pathogens standard to prevent HIV infection and over 300 health care worker deaths a year from hepatitis B. At that time, infectious diseases were “a new regulatory arena.” Thankfully, Judge (or Justice) Kavanaugh wasn’t around then to rule on that standard. Thousands of health care workers owe their lives to OSHA’s move into the “new regulatory arena” of infectious diseases.

Bad for the Environment

Ken Ward of the Charleston Gazette-Mail reminds us that Kavanaugh is not only anti-worker (and anti-OSHA), but also anti-environment (and anti-EPA). In 2011, Kavanaugh was the lone dissenter in a case where Arch Coal had challenged the Environmental Protection Agency’s authority to cancel a mountain-top removal permit that had been issued by the U.S. Army Corps of Engineers. The 2,300-acre Spruce operation that would have buried more than seven miles of streams.  “The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.”

Kavanaugh’s argument is that EPA didn’t do a proper cost benefit analysis. Suddenly becoming a champion of working people and unions (at least when it benefits the company), Kavanaugh argued that EPA had failed to factor in the costs of  putting more than 300 United Mine Workers union members out of work.  Once again, Kavanaugh was making stuff up (legally). Arch Coal hadn’t even made that argument.

Kavanaugh also criticized the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.” Perhaps the fish had also “accepted the risk” of living in streams near coal deposits.

One of the judges in the majority was an Ronald Reagan pick, and the other was appointed by President Obama.

Conclusion

Kavanaugh stated at last night’s press conference that one of his legal principles is that “A judge must interpret statutes as written.”  He might have added that to interpret the law as written, one must first read and understand the law.

He also warmly told the world that his mother was a prosecutor whose trademark line was: “‘Use your common sense. ‘What rings true? What rings false?’ That’s good advice for a juror and for a son. ”

Indeed it is. And maybe he could explain to the parents and husband of Dawn Brancheau why it rings false to him that the company responsible for their daughter’s safety should be held responsible for her death —  and held to the same standard as every other employer in the country.

Until he does that, he doesn’t belong on the Supreme Court.

This blog was originally published at Confined Space on July 10, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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