Outten & Golden: Empowering Employees in the Workplace

Illinois poised to be next state to pass $15 minimum wage

February 13th, 2019 | Laura Clawson

After New Jersey made its move toward a $15 minimum wage official, the question was where next—and it hasn’t been a long wait to find out. The Illinois state Senate has passed a bill raising the state’s minimum wage from its current $8.25 an hour to $15 in 2025. The state House, which has a Democratic majority, needs to vote next. Assuming the bill passes the House, Gov. J.B. Pritzker is on board, telling reporters that “If you live in this state and put in a hard day’s work, you should be able to afford to put a roof over your head and food on the table.”

The bill raises the minimum wage to $9.25 an hour on Jan. 1, 2020, then to $10 on July 1, 2020. After that, it rises $1 every January until it reaches $15 in 2025. Unfortunately, it does not bring the tipped minimum wage up to $15 with everyone else, keeping that at 60 percent of the full minimum wage. The bill offers a tax credit for small businesses that will be gradually phased out.

Illinois’ minimum wage hasn’t increased since 2010, but Chicago and Cook County have increased theirs, which are currently at $12 and $11, respectively. The federal minimum wage remains stuck at $7.25, where it’s been for a decade. Congressional Democrats have introduced a $15 minimum wage bill, but Republicans are blocking it and will continue to do so as long as they can.

Speaking of New Jersey, the last state to head to $15, its legislature has sent a bill strengthening its paid family leave program to Gov. Phil Murphy’s desk.

This blog was originally published at Daily Kos on February 9, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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Denver teachers go on strike for the first time in 25 years

February 12th, 2019 | Elham Khatami

Thousands of teachers from Denver Public Schools gathered at the state Capitol Monday to kick off their first strike in 25 years, demanding pay increases and a long-term solution to the state’s ongoing problem of underfunding schools.

The strike, which is led by the Denver Classroom Teachers Association (DCTA), will affect more than 200 schools in the district. Administrators plan to keep schools open by hiring substitute teachers, though pre-school classes have been cancelled. Depending on how long the strike goes on, school officials have acknowledged that they may have to close some schools if they are unable to hire enough substitutes.

Educators voted to strike last month after disagreements with school administrators over pay. As ThinkProgress previously reported, the major dispute is over a merit-based compensation system called “ProComp,” which began in 2005. It gives teachers one-time incentives beyond their base salaries as a reward for working in hard-to-staff positions or to teach in schools where students perform well on state tests.

The union, however, has pushed for a more traditional approach to salary structure, calling for a system that allows all teachers to get raises and cost-of-living increases. During negotiations, the district was $8 million short of what the union asked for to overhaul the compensation system. Teachers, meanwhile, argued that the district could reduce administrators’ bonuses and take money out of its reserve to pay for it.

At a press conference Monday, DCTA’s lead negotiator Rob Gould said he hopes school administrators “come to the table tomorrow ready to listen so we can get back to work cause our teachers want to be in the classrooms with their kids.”

While educators were on strike, students at East High School in Denver took to the halls Monday morning in a show of support for their teachers. Video shared on Twitter showed students chanting, “Pay our teachers!”

Colorado is one of the worst offenders when it comes to public school funding. According to Education Week’s 2018 state-by-state assessment of public education, the state earned a D-plus for overall school finance. Colorado received an F for its spending on public education.

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A key reason for this is that Colorado legislators can reduce school funding in order to balance the budget, using a tool called “negative factor.” Over the years, lawmakers have trimmed billions of dollars in funding to rural schools, schools serving at-risk students, and those serving populations with a high cost of living. As the Coloradoan reported in 2017, Colorado spends an average of $9,471 on each public school student, $2,685 less than the national average.

Denver is the latest city where teachers have gone on strike to demand better pay and funding for schools. Last year, weeks-long strikes in red states like West Virginia, Oklahoma, and Arizona led to pay increases and more money. Los Angeles teachers recently ended a weeklong strike, after achieving several of their demands, including a 50 percent reduction in standardized testing and smaller class sizes.

This article was originally published in ThinkProgress on February 11, 2019. Reprinted with permission. 

About the Author: Elham Khatami is an associate editor at ThinkProgress. Previously, she worked as a grassroots organizer within the Iranian-American community. She also served as research manager, editor, and reporter during her five-year career at CQ Roll Call. Elham earned her Master of Arts in Global Communication at George Washington University’s Elliott School of International Affairs and her bachelor’s degree in writing and political science at the University of Pittsburgh.

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Meet the Militant Flight Attendant Leader Who Threatened a Strike—And Helped Stop Trump’s Shutdown

February 11th, 2019 | David Dayen

The government shutdown introduced America to an audacious new voice in the labor movement: Sara Nelson. While receiving the MLK Drum Major for Justice Lifetime Achievement Award from the AFL-CIO on January 20, Nelson, the International President of the Association of Flight Attendants-CWA, called for a general strike to support the 800,000 federal employees who were locked out or forced to work without pay. “Dr. King said, ‘their destiny is tied up with our destiny,’” Nelson told a cheering crowd of labor leaders. “We cannot walk alone.”

Absences among air traffic controllers on the 35th and final day of the shutdown, causing ground stops at LaGuardia Airport in New York and elsewhere, contributed to the eventual resolution of the standoff. Before the shutdown ended, flight attendants were mobilizing to walk out as well—as Nelson said, “if air traffic controllers can’t do their jobs, we can’t do ours.” Simply floating the idea of labor unrest raised the stakes. Nelson, who took over leadership of the AFA in 2014, broke an unwritten rule by expressing the logical endpoint of the power workers hold in their hands.

“I was very aware when writing that speech that it was going to be a moment and it was going to make a lot of things possible,” she told In These Times during an interview last week in Los Angeles. “There has been this hopelessness, this feeling that the problems are out of our reach. So setting a bold course and being bold about the action that we need to take was something that I knew people would respond to.”

That urgency has yet to dissipate. The shutdown was merely put on pause—government funding runs out again February 15. It’s entirely possible that workers could again get furloughed and cut off from pay. And Nelson wants everyone to understand how her members are willing to sacrifice in response.

“I know how dangerous a day 36 of the lockout would be,” she said, referring to a resumption of the shutdown. “We’re going to continue running as fast as we can right up to February 15, so that we can take action immediately on February 16 if necessary.” If flight attendants do take action, other unions and even the airlines themselves may get behind them. That’s because the shutdown inserted fundamental risk into the air travel system.

Nelson, a 23-year rank and file flight attendant with United Airlines who still occasionally works trips, thinks that it will take years for the aviation industry to recover from the shutdown and the issues that preceded it. Nearly 20 percent of all air traffic controllers are currently eligible to retire, a figure that rises to 40 percent in the New York City area, Nelson said. Staffing was at a 30-year low before the shutdown. The political uncertainty could easily convince air traffic controllers into cutting their careers short. And the training required for such a difficult job means that replacing these workers will take time.

“If you have a 99.5 percent efficiency rate in a job, people applaud you, you get awards, right?” Nelson explained. “If an air traffic controller has a 99.5 percent efficiency rate, 50 planes go down a day.”

Fewer people managing plane traffic means reduced capacity in the air. That has an economic impact, compounded by the shutdown’s temporary halt on installing improved safety measures like the NextGen modernization—an FAA-led effort to modernize the United States’ transportation system. Even after the shutdown, NextGen has not rolled back to life, Nelson said. “No contractor is going to come to work when they think they’re going to have to shut down in two weeks possibly.”

Amid this economic uncertainty and threat to safety, Nelson has signaled a critical need for worker action. The labor strike is having a renaissance in America. Teachers across the country—even in states like West Virginia where striking is illegal—have withheld their labor to bargain for better pay, conditions and outcomes for their students. Hotel workers at Marriott spent two months on the picket lines this winter to win concessions from management.

As Nelson understands, the willingness of workers to strike has powerful effects. The Association of Flight Attendants resolved a dispute in 1993 with Alaska Airlines—which led to as much as 60 percent pay raises for workers in some cases—by only striking seven flights. The union called it CHAOS: “create havoc around our system.” With air travel so interconnected and interdependent, the ever-present threat of CHAOS has helped lead to labor peace.

The right to strike is a privilege that federal employees are denied; they are legally prohibitedfrom walkouts, and they can be terminated, hit with the loss of a federal pension, and even personally prosecuted for defying the law. “Those federal workers were actually very courageous,” Nelson said. “Because in my view what the White House wanted here was for the workers to strike. They wanted to replace them so they could privatize the entire system.” This is not so far-fetched—President Trump has publicly supported air traffic control privatization.

Nelson believes that the heroic efforts of federal workers to show up to work without pay demands that the labor movement support them with solidarity strikes, part of her desire to shake up the status quo. “If we try to play by the rules, we’re only going to continue to decline,” she said.

Part of Nelson’s power derives from the union she leads. Flight attendants are a uniquely consumer-facing profession that comes into contact with millions of Americans every day. And they share with passengers the indignities of air travel, a by-product of corporate greed and industry consolidation that has left four carriers controlling 80 percent of all domestic routes. With few alternatives for passengers, shrinking seats and overhead bins have heightened tensions in the cabin, and flight attendants are bearing the brunt. According to Nelson, “Our union, our bread and butter issues are absolutely tied up in this overall fight that I think is really about, are we going to be about people or are we going to be about politics and profits?”

In the near term, that fight is translating into mass mobilization against the threat of another shutdown. Nelson’s union is leafleting at airports and communicating to the public between now and February 15 to identify the stakes, and making clear that members are committed to walking out if necessary. They’re also advocating for a permanent end to government shutdowns, and back wages for low-income federal contract workers who were furloughed.

One moment during the previous shutdown has stuck with Nelson, a reminder of the unifying force of cross-sector solidarity. “I was doing interviews on the shutdown in a cab ride” in Washington, D.C., Nelson recalled. “And when I got to the office and went to get out and pay my fare, the cab driver turned around and his chin was shaking and his eyes were watery. And he said, ‘Thank you, I know you’re fighting for me too.’ It was like, oh yeah, there’s been nobody on the streets, and he’s had no fares. And that really shook me, because we don’t really understand how much the effect ripples.”

This notion that we all have a stake in one another’s struggles has driven Nelson’s thinking throughout this government-created crisis, and it’s elevated her to a prominence that could portend a larger role in the future. Nelson begged off such thoughts, insisting that she was focused on saving the lives of her members and airline passengers. But she did leave some room to consider the broader lessons of collective action, in a moment when so many forces are aligned against the working class: “I’m very aware that if we do it well, it’s an opportunity for workers to taste their power.”

This article was originally published at In These Times on February 8, 2019. Reprinted with permission. 

About the Author: David Dayen is an investigative fellow with In These Times‘ Leonard C. Goodman Institute for Investigative Reporting. His book Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud won the 2015 Studs and Ida Terkel Prize. He lives in Los Angeles, where prior to writing about politics he had a 19-year career as a television producer and editor.

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Protecting America’s Workers Act Introduced. Would Strengthen OSHA and Workers’ Rights

February 8th, 2019 | Jordan Barab

A new and improved Protecting America’s Workers Act (PAWA) has been introduced into the House of Representatives by Congressman Joe Courtney (D-CT). Similar versions of this bill has been introduced every year for over a decade.  The bill number is H.R.1074 and a copy of it can soon be found here. (In the meantime, here is a PDF and a Section-by-Section analysis.)

As with past PAWA bills, this version, which has 27 co-sponsors, extends OSHA coverage to public sector employees in those states where they’re not currently covered (as well as federal employees), strengthens anti-retaliation protections for workers, requires the abatement of hazards during contests by employers and toughens criminal penalties.

In addition, this year’s bill also includes provisions to codify OSHA’s severe injury and electronic injury reporting requirements (including the detailed reporting by large employers recently withdrawn by OSHA). It reverses the revocation of the “Volks Rule” which was repealed by Congress and the President under the Congressional Review Act at the beginning of the Trump administration.

PAWA significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions. 

The bill significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions.

Courtney introduced the bill on the anniversary of the 2010 Kleen Energy power plant explosion that killed 5 workers in Middletown, Connecticut.  According to Courtney,

Today, on the ninth anniversary of the accident, it’s appropriate that my colleagues and I reintroduce this legislation to make critical, decades-overdue updates to OSHA. Every day, 14 employees go to work and never come home to their families due to fatal on-the-job injuries. The OSHAct made great strides in protecting American workers, but since it was enacted the American workplace has modernized and diversified. The law should keep up with the realities that workers face on the job today. Our bill is focused on updates and compliance, not on petty, punitive measures against employers, and will ensure that today’s workforce is empowered and protected by our nation’s chief worker safety law.

What’s In PAWA?

If passed, PAWA 2019 would:

  • Expand OSHA coverage to millions of state and local government employees in the 24 states where they’re not currently covered and broaden OSHA coverage to include federal employees.   
  • Authorize felony penalties against employers who knowingly commit OSHA violations that result in death or serious bodily injury and extend such penalties to corporate officers and directors. Under the current law, criminal penalties for the willful death of a worker are only misdemeanors. In addition, knowing violations which cause or contribute to the death of a worker would have a maximum fine of $250,000 for individuals and $500,000 for organizations, or a 10-year prison term, or both.  Death of a worker would not be the only violation that could send an employer to jail. Knowing violations which cause “serious bodily harm” are subject to maximum fine of $250,000 for individuals and $500,000 for organizations or a 5-year prison term, or both.
  • Codify the Susan Harwood Training Grant Program to provide grant funding for training and education programs for workers and employers. President Trump has attempted to eliminate the program in his last two budgets.
  • Reinstate the “Volks Rule,” making it an employer’s ongoing obligation to maintain accurate records of work-related illness and injuries. This reverses a Congressional Review Act resolution that eliminated OSHA’s authority to issue citations for recordkeeping violations that occurred within the 5 year record retention period and undermined OSHA’s ability to enforce against employers who violate requirements to record workplace injuries and illnesses.
  • Improve whistleblower protections for workers who call attention to unsafe working conditions, including extending the time allowed to file a whistleblower complaint from 30 days to 180 days.   
  • Expand workers’ right to contest citations and penalties. An employee or employee representative may challenge the severity of a citation (e.g. willful, serious, repeated, etc.) and/or the size of the proposed penalty. Currently employees and their representatives are only allowed to contest the length of the abatement period.
  • Clarify that an “authorized employee representative” under the OSHAct does not just refer to an employee of the employer, or a union representative, but rather “an individual or organization designated by one or more employees of the employer.” OSHA had clarified this change by interpretation during the Obama administration, but that interpretation was withdrawn under the Trump administration.
  • Ensure worker safety is protected in a timely manner by mandating that employers correct hazardous conditions while a citation is being contested.  Currently, the employer does not have to correct a violation if the employer challenges the citation, leaving workers in harm’s way.   Currently, OSHA is often forced to significantly reduce or eliminate penalties or downgrade citations in order to secure timely abatement of hazards. Employers would have a right to seek a temporary stay of OSHA’s abatement order through an expedited proceeding before a Review Commission Administrative Law Judge.
  • Improve protections for employees currently covered by other agencies, such as the FAA and employees of the Department of Energy’s nuclear facilities by enabling OSHA to determine the adequacy of those agencies’ workplace safety and health programs.  Currently the agency only only has to state
  • Update obsolete consensus standards within two years that were incorporated by reference when OSHA was first enacted in 1970.   There are approximately 200 consensus standards that cover general industry and maritime that were initially adopted in the early 1970s and for which lengthy notice and comment rulemaking was not required.
  • Deter high gravity violations by providing authority for increased civil monetary penalties for willful and serious violations that cause death or serious bodily injury.   
  • Require employers to report injury and illness records to OSHA to provide the agency with data to effectively target unsafe workplaces.   This would codify OSHA’s Severe Injury Reporting rule (which now exists as a regulation), as well as the “electronic recordkeeping” regulation that OSHA partially rolled back last week. 
  • Require OSHA to investigate all cases of death and serious injuries that occur within a place of employment.   
  • Establish rights for families of workers who were killed on the job by giving families the right to meet with OSHA investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.   
  • Improve protections for workers in state plans by allowing federal OSHA a more expedited procedure to take over enforcement in those states where the plan fails to meet minimum requirements needed to protect workers’ safety and health. GAO would be required to conduct a study to determine whether OSHA oversight of state plans, and state plan funding is adequate.
This article was originally published at Confined Space on February 8, 2019. 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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New York bill would jail employers for discriminating over immigration status

February 7th, 2019 | ThinkProgress Staff

Employers in New York state could face a penalty of up to three months in prison and a $20,000 dollar fine if they make threats regarding a person’s immigration status, under a new bill proposed by Democratic New York Attorney General Letitia James.

Undocumented workers face unique challenges in the workplace when it comes to filing grievances against management or speaking up about lost wages. The New York labor department claims it has investigated at least 30 cases over the last three years that involved threats to an employee’s immigration status. James’ legislation would make those threats illegal.

“New York state was built by immigrants and it has always stood proudly as a beacon of hope and opportunity no matter where you were born,” James said in a statement. “This legislation will represent a critical step toward protecting some of our most vulnerable workers by ensuring that they are not silenced or punished by threats related to their immigration status.”

The bill would amend a part of the New York Labor Law to refer employers who discriminate on the basis of immigration status to prosecutors, who could charge them with a misdemeanor and impose a fine up to $20,000 depending on the nature of the complaint and if the employer has a history of prior labor offenses.

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James’ announcement came one day after President Donald Trump reiterated in his State of the Union address calls to crack down on undocumented immigrants living in the United States.

“No issue better illustrates the divide between America’s working class and America’s political class than illegal immigration. Wealthy politicians and donors push for open borders while living their lives behind walls and gates and guards,” he said. “Meanwhile, working class Americans are left to pay the price for mass illegal migration — reduced jobs, lower wages, overburdened schools and hospitals, increased crime, and a depleted social safety net.”

Trump’s namesake company, however, has previously employed undocumented workers itself, and two of them were present at the speech Tuesday night.

One of the guests was Victorina Morales, a former personal housekeeper for President Trump at the Trump National Golf Club in Bedminster, New Jersey and Guatemalan immigrant. The other was Sandra Diaz, also a former golf club employee, who was born in Costa Rica and is now a legal resident.

Both women said they were happy to represent the millions of immigrants seeking a new life in the United States, and remind the president of those working for the Trump Organization.

“Very sad that he doesn’t change his position but happy that we’re there to tell the truth, to remind him of those who work for him,” Diaz said.

“I know it’s a long road and we have to fight,” Morales added. “There’s still a lot to do.”

The New York legislation was drafted partially in response to reports that Morales and other undocumented employees at Trump’s property in New Jersey had been threatened with having their immigration statuses exposed if they filed complaints against their supervisors. Morales said her supervisor frequently made demeaning remarks to undocumented employees, calling them “stupid illegal immigrants” with less intelligence than a dog.

In the wake of over-policing by the Immigration and Customs Enforcement (ICE) agency — itself emboldened by Trump — state and local governments are finding legislative pathways to protect immigrant communities. New Jersey, for example, has instituted an Immigrant Trust Directive that would both protect immigrants in their interactions with state law enforcement while also building trust between police and migrant communities.

California, Oregon, and Illinois have issued similar directives in the past.

“Very sad that he doesn’t change his position but happy that we’re there to tell the truth, to remind him of those who work for him,” Diaz said.

“I know it’s a long road and we have to fight,” Morales added. “There’s still a lot to do.”

The New York legislation was drafted partially in response to reports that Morales and other undocumented employees at Trump’s property in New Jersey had been threatened with having their immigration statuses exposed if they filed complaints against their supervisors. Morales said her supervisor frequently made demeaning remarks to undocumented employees, calling them “stupid illegal immigrants” with less intelligence than a dog.

In the wake of over-policing by the Immigration and Customs Enforcement (ICE) agency — itself emboldened by Trump — state and local governments are finding legislative pathways to protect immigrant communities. New Jersey, for example, has instituted an Immigrant Trust Directive that would both protect immigrants in their interactions with state law enforcement while also building trust between police and migrant communities.

California, Oregon, and Illinois have issued similar directives in the past.

This article was originally published at ThinkProgress on February 7, 2019. Reprinted with permission.

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.

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

February 6th, 2019 | Casey Quinlan

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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Trump labor board declares open season on 'independent contractors' this week in the war on workers

February 5th, 2019 | Laura Clawson

The Donald Trump-appointed National Labor Relations Board dealt a major blow last week to workers being exploited by companies misclassifying them as independent contractors. Whether a worker is an employee has long been determined by a number of factors, including how much control the employer exerts over things like work hours and conditions. The NLRB, though, looked at SuperShuttle drivers in Dallas-Fort Worth who have to buy the exact van that SuperShuttle wants, pay a series of fees to SuperShuttle, use company dispatchers, and be monitored by SuperShuttle GPS tracking, and decided that they are legitimately independent contractors and not employees because something something “entrepreneurial opportunity.” Moshe Marvit has the gory details:

Throughout the Board majority’s decision, it becomes clear that when it uses the language of “freedom” and “entrepreneurial opportunity,” it is the freedom to fail and the opportunity to lose. Reading the decision, one is struck by the lack of any evidence that the drivers—or “franchisees” in the language of the case—do well under the agreement. Instead, the Board majority approvingly cites the NLRB Acting Regional Director who made the first determination in the case, in which she found that “franchisees face a meaningful risk of loss in light of the substantial costs that go into owning a franchise, i.e. the vehicle payments, weekly system fees, insurance costs, gas, maintenance, licensing fees, and tolls.” The Board methodically goes through every instance where the company has offloaded costs and risks to the drivers, while maintaining strict control, and calls the new relationship one where the drivers are small business owners, experiencing freedom and entrepreneurial opportunity.

Basically the NLRB served notice that there may be no employment relationship so exploitative that it declines to affirm it as independent contracting.

This blog was originally published at Daily Kos on February 2, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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Undermining Worker Safety — Despite Laws and Shutdowns

February 4th, 2019 | Jordan Barab

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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Polar Vortex Shows How Incarcerated Workers Are Bearing the Brunt of Extreme Weather

February 1st, 2019 | Michael Arria

On January 28, an image of Cook County Jail prisoners shoveling snow went viral after it was posted on the  La Villita community Facebook page and then shared by the Chicago Community Bond Fund. The city of Chicago was preparing for an arctic blast and the prisoners were seen working in cold temperatures wearing orange jumpsuits. Thousands of people shared the image and expressed concern about the well-being of the prisoners. This scenario is yet another example of how incarcerated workers—toiling for little or no pay—are on the frontlines of extreme weather.

Predictably, the office of Cook County Sheriff Tom Dart sought to exonerate itself in the press. “The situation was entirely and intentionally misrepresented,” said Cara Smith, chief spokesperson for Dart’s office. Smith claimed the prisoners were actually wearing insulated jumpsuits, that there was a warming van nearby, and that prisoners were not allowed to work if the temperature dropped under 20 degrees. Numerous news outlets reported Smith’s quotes without digging into their veracity, even though she presented no evidence.

Smith admitted that prisoners were only paid $2 for the work assignment, in a jail where at roughly 2,700 people are incarcerated simply because they can’t afford to pay their bond. Smith sought to justify the nothing wage by claiming the prisoners were doing work as part of a vocational job training program called RENEW. Yet, as Sharlyn Grace, co-executive director of the Chicago Community Bond Fund, put it to The Chicago Tribune, “I don’t think that anyone is seriously suggesting that shoveling snow is a skilled form of labor that’s going to lead to job opportunities upon release.” Prisoners have little-to-no access to the press, and reporters often make no effort to contact them, so it’s no surprise that none have been quoted on the subject.

The latest example at Cook County Jail certainly isn’t the first time that prison labor has been used to respond to or prepare for extreme weather, nor is it the first time that such a controversy has made national headlines. In 2015, Think Progress reported that the Massachusetts Bay Transportation Authority had used volunteer prison labor to shovel snow in Boston when the windchill was negative 25 degrees. The prisoners were paid $3 to $4 a day for their efforts, while non-prisoners doing the same work were paid $30 an hour.

After deadly wildfires hit California this past fall, more than 2,000 prisoners were used to help fight them. While the prisoners fight fires through a vocational program offered by the state, they’re incentivized by earning time off of their sentences and they’re only paid $2 a day and an additional $1 an hour if there is an active fire to fight. While the prisoners could use the work to reduce their sentence, once released, they often aren’t allowed work as firefighters due to their record of incarceration. In California, the job can legally be deniedto almost anyone with a criminal record.

Global warming is making wildfires, like the ones in California, more extreme.  “You warm the planet, you’re going to get more frequent and intense heat waves. You warm the soils, you dry them out, you get worse drought,” Michael Mann, an atmospheric science professor, told PBS last August. “You bring all that together and those are all the ingredients for unprecedented wildfires.”

Additionally, many scientists are now also connecting intense cold waves to the warming of the Arctic, which means that prisoners working in the cold could also technically be on the frontlines of the climate crisis. Prisoners have very little protections, are at great risk of exploitation, and details about their conditions are often scarce.

Panagioti Tsolkas, the coordinator for the Campaign to Fight Toxic Prisons, tells In These Times that he also sees the intersection of climate change and mass incarceration in the wake of environmental disasters. “After hurricanes here in Florida, prisoners got called out to help with relief efforts,” he says.

While prisoners are being used to mitigate climate disasters, they’re among the most vulnerable to their impacts. Incarcerated people are often housed in prisons that experience extreme heat without air conditioning. A 2017 report from The Marshall Projectfound that four out of five people held in Texas prisons lack air conditioning. In 2014, state prisoners at Wallace Pack Unit in Grimes County sued their prison after a number of incarcerated people died as  a result of the extreme heat. Four years later, a settlement was reached, and the prison was required to provide air-conditioning.

In 2018, the Texas Inmate Families Association compiled reports from prisoners’ relatives and found that at least 30 Texas prisons had inadequate heating after freezing temperatures hit the state during the winter. Last year, the Campaign to Fight Toxic Prisons helped organize a prisoner strike in the state of Florida. The prisoners said one of their intentions was to “expose the environmental conditions we face, like extreme temperatures.”

Last summer, prisoners organized a nationwide strike across 17 prisons to highlight poor conditions and labor practices. Among their demands was an “immediate end to prison slavery. All persons imprisoned in any place of detention under United States jurisdiction must be paid the prevailing wage in their state or territory for their labor.”  The 13th Amendment abolished slavery but contains an exemption that allows involuntary servitude as part of a criminal punishment. Chicago’s minimum wage is set to increase to $13 an hour this summer, and the prisoners who shoveled snow this week lag far behind.

This article was originally published at In These Times on February 1, 2019. Reprinted with permission. 

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

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Shutdown pain drags on for federal contractors, who won't get back pay unless Democratic bill passes

January 31st, 2019 | Laura Clawson

One of the key post-shutdown tests for Senate Republicans will be this: Do federal contract workers get back pay? Those workers, many of them among the lowest-paid in the government, didn’t get back pay after the 2013 shutdown, and it will only come this time through a separate bill, which Democrats have introduced, including up to $965 a week in back pay plus any sick days that people used to get through the shutdown.

The shutdown caused pain for hundreds of thousands of workers, perhaps most of all for these workers largely earning between $450 and $650 a week, more than a thousand of them in the expensive Washington, D.C., area, and without any guarantee, or even strong hope, of getting back pay when government reopened. Unemployment benefits weren’t a good answer, as one Smithsonian security guard discovered: The checks took weeks to start arriving and were hundreds of dollars short of his pay.

National Portrait Gallery cleaning supervisor Audrey Murray-Wright told the Washington Post that she couldn’t afford her blood pressure medication—which presumably would have been particularly important as she looked at a stack of bills she was behind on—but the worst part was that “I never, ever want to tell my son, ‘Don’t drink all that milk so you can save your brother some.’”

These people do important work for the government, for low pay. They deserve back pay every bit as much as if their checks came directly from the government rather than through a private company with a government contract. So, will Senate Republicans vote for, and Donald Trump sign, a bill to make them whole?

This blog was originally published at Daily Kos on January 29, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos. 

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