Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NLRB’

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

Wednesday, February 6th, 2019

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.

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

Tuesday, February 5th, 2019

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.

Should Workers Be Punished for Being Employed By Subcontractors? This Legal Battle Will Decide.

Thursday, January 10th, 2019

Over the last few decades, a growing number of American workers have effectively lost many of their labor rights because of the way their bosses structure the employment relationship. These workers are contractors who are hired by one company but work for another: the Hyatt Hotel housekeepers who actually work for Hospitality Staffing Solutions, the Microsoft tech workers who actually work for a temp agency called Lionbridge Technologies, and the Amazon warehouse workers who actually work for Integrity Staffing Solutions. These workers often perform the same work at the same place as other workers, frequently on a permanent basis.

But because their employers have entered into complicated contracts with each other, these workers have been unable to exercise their labor rights. If the workers can only bargain with the staffing company and not the lead company where they actually work, they are negotiating with the party that often has no power to change the terms of their employment. For that reason, workers have fought for a more inclusive definition under the National Labor Relations Act of what constitutes an employer—and when two employers are joint employers.

Recently, the Washington, D.C. Circuit Court of Appeals issued a major ruling that was a win for workers, and now this issue seems destined for the Supreme Court. As the legal battle heats up, workers everywhere should be paying close attention, since their livelihoods—or unions—could be affected.

Contracting expands as workers’ rights shrink

Under a traditional employment relationship, workers have one employer who has the power to hire, fire, pay, supervise and direct them. If such workers form a union, the law requires the employer to recognize the union and bargain in good faith. (Employers routinely violate the law and suppress workers’ labor rights, but workers at least have a theoretical path to collective bargaining.) Workers also have the right to picket and engage in other disruptive activities when they have a labor dispute with that employer.

However, there is a growing group of blue-collar, white-collar and service workers who find themselves working for two employers, either through contractors or temporary help firms. “In 1960 most hotel employees worked for the brand that appeared over the hotel entrance,” David Weil, former adminstrator for the Department of Labor Wage and Hour, explains in his 2014 book, The Fissured Workplace. “Today, more than 80 percent of staff are employed by hotel franchisees and supervised by separate management companies that bear no relation to the brand name of the property where they work.”

For those who work in a fissured workplace, organizing a union can be especially tough. The contracting firms have little power to raise wages or change working conditions, unless the company that controls the worksite agrees. Therefore, workers need both employers at the bargaining table.

Starting in 1984, the National Labor Relations Board (NLRB) began imposing difficult requirements to show that two employers are joint employers. By 2002, the NLRB was requiring that it be shown that the putative joint employer exercises direct and immediate control over employment matters. This meant that even when a company hired workers through a staffing agency to work at its site, chose the number of workers, gave specific work assignments and directions, and exercised supervision, it was not found to be a joint employer. Workers could, of course, form a union to negotiate with the staffing agencies, but those agencies usually have little room to maneuver alone.

Obama’s labor board

Recognizing this growing problem, in 2015 the NLRB changed the test to determine when two employers constitute a joint employer in its landmark Browning-Ferris Industries decision. No longer would workers have to show that both employers exercise direct control over them. Instead the NLRB recognized how power actually functions in the workplace and ruled that it would only require a showing that an employer had indirect or reserved control over the workers.

In its ruling, the NLRB recognized that for 30 years its approach to continuously adding requirements was moving in exactly the opposite direction from what was required: “As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded.” And indeed, according to data from the Bureau of Labor Statistics’ most recent Contingent Worker Survey, there are approximately 2.3 million workers who work for contractors or temporary help agencies, and this figure captures only a portion of those that one could reasonably find have joint employers.

The NLRB’s new Browning-Ferris test looked at whether two employers actually share or codetermine employment matters by also considering reserved or indirect control. Therefore, an employer could no longer avoid its liabilities and obligations by structuring its power in an indirect fashion. James Hoffa, the president of the Teamsters, the union that represented Browning-Ferris workers, said at the time, “This decision will make a tremendous difference for workers’ rights on the job. Employers will no longer be able to shift responsibility for their workers and hide behind loopholes to prevent workers from organizing or engaging in collective bargaining.”

Similarly, employer-side attorneys recognized the scope of the decision. In their dissent in Browning-Ferris, NLRB Members Philip Miscimarra and Harry Johnson wrote that the decision was “the most sweeping of recent major decisions. Attorney Marshal B. Babson who represented the U.S. Chamber of Commerce in its opposition to this case, said at the time, “The decision today could be one of the more significant by the NLRB in the last 35 years. Depending on how the board applies its new ‘indirect test,’ it will likely ensnare an ever-widening circle of employers and bargaining relationships.”

The right strikes back

Reaction among corporate groups and Republicans was immediate, severe and comprehensive. Within two weeks, both House and Senate Republicans had introduced the Protecting Local Business Opportunity Act, which would amend the National Labor Relations Act to define joint employers as those who “directly, actually and immediately” exercise control. In 2017, the House passed its version of the bill in a vote that fell largely along party lines.

Once the NLRB came under Republican control and was presented with a case that touched upon the joint employer question, the NLRB, in the Hy-Brand case, overruled Browning-Ferris. This decision was so potentially damaging to workers that former NLRB Member and current executive director of the Labor and Worklife Program at Harvard Law School, Sharon Block, wrote that the decision constituted part of a “December Massacre.” 

But then, on February 9, 2018, the NLRB Inspector General issued a memorandum that determined that there was a “serious and flagrant problem and/or deficiency” in the NLRB’s deliberations surrounding the Hy-Brand case. Specifically, the memorandum found that Hy-Brand was effectively a “do-over for the Browning-Ferris parties,” and since NLRB Member William Emanuel’s former law firm represented Browning-Ferris in that case, he should have recused himself. Following this memorandum and Emanuel’s recusal, the NLRB unanimously vacated its Hy-Brand decision that overruled Browning-Ferris—and announced that Browning-Ferris was still good law.

The fight heats up

The Republican-controlled NLRB, intent on overturning the Browning-Ferris decision, decided to pass a rule redefining joint employers under its rarely used administrative rule-making authority. But since administrative rules require the agency to go through a series of steps and collect public comments, this rule will likely take years to become final. 

On December 28, 2018, the Washington, D.C. Circuit Court of Appeals, which, according to The New York Times, is “widely views as second in importance only to the Supreme Court,” released its long-awaited decision on the Browning-Ferris appeal. The Court issued an important and unqualified win for workers in affirming the NLRB’s 2015 Browning-Ferris decision, agreeing with the NLRB that its new Browning-Ferris test was firmly grounded in the common law. Using the unfortunate legal language of “master-servant,” the Court explained that “retained but unexercised control has long been a relevant factor in assessing the common-law master-servant relationship.”

The court fully affirmed the NLRB’s new Browning-Ferris joint employer test, but it sent the case back to the NLRB, because the NLRB did not fully apply its new test to all the facts of the particular case. This means that the NLRB must use its Browning-Ferris test going forward, which is good news for labor rights. 

The case is now headed to the NLRB, but that is unlikely to be the end of the road for this major issue. It is quite possible that this matter will eventually end up before the U.S. Supreme Court, and this should be cause for some concern among workers. The Supreme Court currently has an ultra-conservative majority, which has shown no hesitation in rewriting decades of law in support of employers in labor cases. As recently as 2014, the conservative majority of the Supreme Court engaged in a bizarre misreading of the definition of joint employer in order to deny labor rights to home healthcare workers. With the addition of Brett Kavanaugh, the Court has become more conservative since that time. Labor may have won this latest battle, but the fight is far from over.

This article was originally published at ThinkProgress on January 10, 2019. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Kavanaugh Is Terrible on Workers’ Rights—And That’s Anti-Woman, Too

Monday, October 8th, 2018

On October 6, the Senate voted to confirm Brett Kavanaugh, the Republican federal appellate judge accused by multiple women of sexual assault, to the Supreme Court.

In light of the allegations—which include attempted rape—the opposition to Kavanaugh has been dominated by concerns about the impact he will have on the lives of women. In addition to his alleged history of physical and sexual violence, protesters fear what Kavanaugh’s “radical” conservatism may augur for reproductive-rights victories, namely Roe v. Wade, the landmark 1973 decision that expanded the legal right to abortion in the United States. Yet these don’t constitute the only perils of the judge’s appointment: Kavanaugh bears a pattern of anti-worker adjudication—a stance that inordinately harms women.

Kavanaugh’s catalog of judicial decisions indicates a clear predilection for the capitalist class. In 2008’s Agri Processor Co. Inc. v. National Labor Relations Board, Kavanaugh argued that a kosher-meat wholesaler, Agri Processor Co., wasn’t required to bargain with an employee union. Before the suit, the United Food and Commercial Workers Union, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) after Agri Processor Co. refused to bargain. Kavanaugh upheld the company’s claim that the workers who had voted in the union election were undocumented workers and therefore didn’t qualify as “employees” protected by the National Labor Relations Act—and thus were prevented from unionizing, so their votes in the union election were invalid.

There are numerous other examples of Kavanaugh issuing anti-worker rulings. In 2015, Kavanaugh ruled in favor of a Las Vegas casino that requested that police officers issue criminal citations against demonstrators protesting the lack of collective-bargaining rights of casino employees. And in 2013, he argued that a Black woman, LaTaunya Howard, couldn’t pursue a race discrimination suit after being fired from her position at the Office of the Chief Administrative Officer of the U.S. House of Representatives for “insubordination.” Howard alleged that her termination was both racially motivated and in response to complaints she’d made about racial pay disparities at her place of work. What’s more, Kavanaugh helped thwart an NLRB order that would have required the Trump Plaza Hotel and Casino to bargain with the United Auto Workers.

This anti-labor positioning is particularly injurious to women, who benefit disproportionately from union membership. The Institute for Women’s Policy Research found that women covered by a union contract earn an average of 30.9 percent more per week that women with non-union jobs, compared to men’s increase of 20.6 percent. Correspondingly, the wage gap between men and women workers is more narrow among those with union representation than those without it. The Economic Policy Institute reported last year that female union workers earn 94 cents for every dollar their male peers earn, versus 74 cents on the dollar without union safeguards.

Kavanaugh also has a history of jeopardizing the work benefits that inform earnings. Workers with union representation enjoy greater access to family, medical and maternity leave—an advantage for women, who are more often tasked with child and elder care than men, and often lose wages as a result. Unionized women are much more likely to have at least partially paid health insurance than those who aren’t unionized: Notably, 73.1 percent of women in union jobs have employer- or union-provided health insurance, an advantage only 49.1 percent of their non-union counterparts receive. It’s virtually the same case for retirement: The ratio of unionized to non-unionized women with employer-sponsored plans is 74.4 percent to 41.8 percent.

If unions and earnings among women are to be examined, it’s necessary to consider the huge impact a figure like Kavanaugh could have on Black women. Though the unionized workforce has decreased precipitously over the last several decades, Black women have traditionally had a higher rate of unionization, particularly in public-sector jobs, than women of other racial and ethnic groups. As of 2013, Black women outnumbered white, Latinx and Asian-American women in terms of unionization. And by 2015, unionized Black women outnumbered unionized Black men.

This is essential for a demographic that, research shows, would have to work an additional seven months to receive the same pay as white men, despite working more hours than white women. (Black women are also paid less than white men for the same job, independent of education level.)

The same urgency for protections applies to Latinx women, who are now the least likely of all women to have union representation. Statistics show that they’re in the most dire need of the boons of organized labor: Latinx women, for example, make 54 cents for every dollar earned by white men. As Esther López of United Food and Commercial Workers urges, “There exists a sure-fire way for Latina women to earn the better wages they deserve: joining a union in their industry. Latina women who have joined a union earn more than their non-union counterparts—$242 more per week, in fact, according to the Bureau of Labor Statistics.”

Another concern arising from Kavanaugh’s anti-labor record—and one particularly pointed in the wake of the allegations levied against him—is women’s vulnerability to workplace sexual harassment. The Equal Employment Opportunity Commission found that “25 percent to 85 percent of women report having experienced sexual harassment in the workplace.” Echoing López, writer Michelle Chen contends that collective bargaining is a viable means of combating this. “Union agreements,” she writes, “protect equality at work, provide everyday organizational support for workers, and promote public accountability by establishing legally binding conditions of employment,” and can pursue such measures as municipal anti-harassment ordinances.

Heeding Kavanaugh’s roster of rulings, the AFL-CIO, Communications Workers of AmericaNational Nurses United and other unions have formally opposed the now-Supreme Court associate justice. NNU has cited specific concerns for women, stating his assaults on collective bargaining rights and workers’ healthcare render him “unfit to serve on the Supreme Court of the United States.” The subtext is that women will pay the greatest price.

This article was originally published at In These Times on October 8, 2018. Reprinted with permission. 

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

Scott Mugno: Rising from the Dead?

Wednesday, September 26th, 2018

While Rod Rosenstein and Brett Kavanaugh may be on their way out, OSHA nominee Scott Mugno and other Department of Labor nominees may be on their way in according to intrepid Bloomberg reporter Chris Opfer.

You may recall that business interests, who hate, hate, hate the idea of Democrat Mark Pearce getting another term on the National Labor Relations Board had reportedly quashed a potential compromise that would have re-appointed Pearce in return for the Dems allowing the confirmation of Mugno, Cheryl Stanton at Wage & Hour and William Beach for the Bureau of Labor Statistics.  But now that deal seems to be back on the table at the White House as the Senate Finance Committee plans to consider Gordon Hartogensis’ nomination to run the Pension Benefit Guaranty Corporation  on Thursday. There may even be some judicial nominations in the pot.

Not that business interests — especially the Chamber of Commerce — would be too disappointed. Mugno is, after all, their guy.

According to Opfer

If the deal comes to fruition, it will likely be within the coming weeks. Lawmakers are expected to flee Washington in early October for one last campaign push before the midterm elections. There’s no telling whether any agreement would still be on the table after the smoke clears from the ballot box. Look for the Senate to potentially use unanimous consent to speed the nominations to the floor and confirm Pearce and others by voice vote shortly before they head home to campaign.

No word as to whether Mugno is still looking forward to trading his leisurely retired life in Florida for a cold, slushy winter in Washington DC — to be followed by the prospects of all oversight all the time if/when the Dems take back the House (and possibly the Senate) in November.

This blog was originally published at Confined Space on September 24, 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).

Trump's war on workers is flying under the radar, but it's relentless

Thursday, August 23rd, 2018

It’s no secret that Donald Trump is not exactly out serving as the champion of workers he suggested he’d be during the 2016 campaign. But the scope of the attack he’s mounted on working people is staggering … and mostly under the radar.

Steven Hill rounds up some of the damage at Working In These Times: The Trump administration killed the Obama-era rule requiring federal contractors to disclose violations of labor law when they bid for contracts. They stopped the Obama administration’s effort to expand overtime eligibility so that millions more people would get overtime when they work more than 40 hours a week.

Then there’s the string of damaging National Labor Relations Board decisions, including a ruling against small unions within larger workplaces, the decision that got McDonald’s off the hook for workers in its franchise restaurants, and:

— Reversing a 2004 decision bolstering workers’ rights to organize free from employer interference.

— Reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms.

— Overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements.

Over at the Occupational Safety and Health Administration, meanwhile, they’ve delayed three important workplace safety rules. And, of course, the Supreme Court has said that employers can force workers into mandatory arbitration, denying them their day in court, and has also attacked public unions in the Janus decision.

These haven’t been high-profile issues, for the most part—they haven’t gotten the attention of the Muslim ban or family separation or Trump’s hostility to allies—but they stand to affect tens of millions of workers’ lives, and even to end some of those lives.

This blog was originally published at Daily Kos on August 25, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

A Rundown of All the Ways Trump Is Overseeing an All Out, Under-the-Radar Attack on Workers

Friday, August 17th, 2018

Amidst headlines about porn stars and bromance with Russian President Vladimir Putin, it can be hard to track the many ways the Trump administration is hurting workers in the United States. The Supreme Court’s Janus ruling that struck a blow to unions’ ability to collect membership dues held a brief spotlight in the national news churn. But in a more-quiet fashion, the Trump administration already has been slowly dismantling worker protections, especially those enacted under the Obama administration.     

During his presidential campaign, Donald Trump repeatedly proclaimed that he would help workers. He even boasted, “I have great relationships with unions.” But actions speak louder than words, and the policies pursued by the Trump administration have directly targeted middle and lower-income workers and labor unions.

The anti-labor attack gained momentum in the last weeks of 2017. President Trump had to wait until his two nominees to the five-member National Labor Relations Board (NLRB) were confirmed. Those new members flipped the board’s majority from Democratic to Republican. The NLRB, which oversees collective bargaining law and enforcement of U.S. labor laws and standards, then quickly issued a slew of key decisions that rolled back a number of worker- and union-related reforms.

In one of the most important changes, the NLRB reversed a 2011 ruling that helped workers form smaller unions within a single workplace. The precedent set under Obama allowed the holding of a union election without including all the different types of jobs within that business that don’t share similar job duties, wages and working conditions. Employers complained that it led to “micro unions.” In a specific case, after 100 welders unionized at a large manufacturing plant, the NLRB ruled that the smaller organizing unit was illegitimate since any union election would have to include all 2,500 workers at the company, spanning 120 job classifications. The NLRB ruled 3-2 along partisan lines.

Another consequential case decided under Trump will hurt low-income fast food workers. The Trump board overturned a major 2015 decision that ruled employers are responsible for bargaining with workers, even if they have only indirect control over those workers’ employment. Fast-food companies like McDonald’s license smaller franchise businesses to run most of their restaurants. McDonald’s instructs these franchises on how to operate but leaves them to control many aspects of their day-to-day business. For decades, franchise employees who wished to bargain collectively were caught in a vicious trap. Their boss, the franchise operator, could insist that McDonald’s controlled the terms of their employment. But if they tried to bargain with McDonald’s, the company would insist that the franchise operator was their true employer.

Obama’s NLRB solved this problem by clarifying that companies like McDonald’s are, jointly with franchise operators, employers of these workers and can be forced to the bargaining table. This new standard permitted much more meaningful collective bargaining among millions of low-wage workers. Longer term, that ruling on joint employers would have dramatically improved collective bargaining rights in the fast-food industry. But the GOP majority on the NLRB scrapped this standard, returning to an old, stringent policy that requires employers to exercise “immediate and direct” control in order to be liable under labor law.

Other damaging decisions by Trump’s NLRB include:

— Reversing a 2004 decision bolstering workers’ rights to organize free from employer interference.

— Reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms.

— Overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements.

All of these were 3–2 decisions, with Republicans in the majority and Democrats dissenting.

Beyond the NLRB

But the NLRB is only one federal agency. Trump’s Labor Department has also rolled back several rules and executive orders that the Obama administration issued to protect workers. Those include the Fair Pay and Safe Workplaces rule, which required companies bidding for large federal contracts to disclose and correct past labor and safety violations. Another rescinded rule had established guidelines for when states can drug-test applicants for unemployment insurance benefits. Also rescinded was the “persuader rule,” which required law firms to publicly disclose any work they do for employers trying to fight against union organization efforts.

Meanwhile, the Occupational Safety and Health Administration (OSHA) has delayed three workplace safety rules issued during the last year of Obama’s presidency. Those rules required certain employers to submit injury and illness data electronically to OSHA for publication on the agency’s website; tightened exposure standards for silica dust, which is often breathed in by certain construction workers and linked to lung disease; and weakened workplace exposure limits for beryllium, an industrial mineral linked to lung cancer.

The Supreme Court also ruled to allow employers to require workers to sign arbitration agreements that waive their rights to file class or collective action lawsuits. Last June, Trump’s acting solicitor general filed a brief with the Court that took the opposite stance from the Obama administration, asserting that mandatory arbitration agreements do not violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act.

Another important ruling made under the Obama administration regarded which workers were eligible to receive overtime pay. The Obama-era rules required nearly everyone paid less than $47,476 a year to be eligible for time-and-a-half overtime pay when they worked more than 40 hours a week. That was a big jump from the $23,660 threshold in place since 2004, and a cornerstone of the Obama administration’s efforts to lift wages. But a federal judge in Texas blocked that rule a week before it was scheduled to take effect, and Obama’s Labor Department appealed. However, Trump’s Labor Department filed a brief in federal appellate court indicating it will not advocate for these overtime changes.

In addition to all that, the Trump administration has proposed $2.6 billion in budget cuts—an enormous 21 percent—to the Department of Labor. Those cuts include a proposed elimination of four department programs and their services, such as training for worker-safety and for migrant farmworkers. The budget also seeks to significantly slash funding for Job Corps, a program that provides job training to disadvantaged youth, by $407 million, or 24 percent. Dimitri Iglitzin, a labor attorney in Seattle, says that “Of all of the ways that the Trump administration has been crushing labor, the most important has been the neutering of the Department of Labor. On a day-to-day basis, the agency that should be fighting for working people is doing so no longer.”

Typically, when the U.S. government shifts from a Democratic presidential administration to a Republican one, a certain level of pro-business policies and erosion of labor rights is expected. However, many labor experts say that the presidency of Donald Trump has led to a repeal of Obama administration regulations that is unprecedented, and is proceeding faster than is typical under a new GOP administration. Celine McNicholas, labor counsel at the Economic Policy Institute in Washington D.C., says the Trump rollbacks of various pro-labor rules and regulations, in addition to deep cuts to the Labor Department’s budget, have been devastating to U.S. workers and “are not business as usual.”

In just over a year and a half as president, Donald Trump has wiped away a number of the modest policy gains that organized labor made during the Obama years. The nominees he chose to fill crucial regulatory roles already are making it more difficult for workers. Taken together, this blizzard of decisions will hurt millions of workers and weaken their abilities to unionize and bargain collectively.

Another way forward

But it does not have to be like this. Germany, Sweden and other EU member states show another path that is better for workers and that creates a stronger relationship between businesses, employees and trade unions.

Countries like Germany and Sweden have stronger labor laws than in the United States, and consequently more influential trade unions. In addition, many EU member states benefit from what is known as “co-determination,” which includes works councils at every job site and worker-elected boards of directors for the biggest of businesses, including Fortune 500 companies. Imagine if Walmart and Amazon were legally required to allow its workers to elect up to 50% of the members of its board of directors? It’s unimaginable to most Americans, yet this is standard practice throughout Europe. Co-determination fosters a “culture of consultation” and a degree of economic democracy. As a result, there is more broadly shared prosperity, with social supports like universal health care, child care, affordable university education, affordable housing, job training/re-skilling, workplace protections, a decent retirement and more.

In an age of growing inequality, the European practice of co-determination has broken with a strictly “shareholder model,” and has set a standard for corporate governance that holds great potential for the digital age if used in a widespread fashion.

Labor attorney Thomas Geoghegan has proposed that U.S. states should try out codetermination. Geoghegan says states should offer tax breaks to companies that allow rank-and-file employees to elect a third to a half of its corporate board of directors. Doing so, says Geoghegan, would allow U.S. companies to test drive an alternative model to the current dysfunctional stockholder model. Also, states could try out this model by requiring that nonprofits, NGOs and universities allow their employees to elect a portion of its board of directors or trustees.

Three senators (Democrats Tammy Baldwin, Elizabeth Warren and Brian Schatz) have introduced legislation that would require that companies allow workers to elect one-third of their corporate board. The bill is not expected to pass, and while the AFL-CIO has endorsed this legislation, historically unions and labor advocates have not taken up this cause. Yet labor leaders don’t seem to have any other proposals that might stop the hemorrhaging of union members.

Certainly such progressive proposals are going nowhere at the federal level under the administration of Donald Trump. So the landscape for political change has shifted to states and to cities where Democrats and progressives are more dominant. Still, even when Democrats have been in control, whether at the federal level under President Obama or in heavily Democratic states like California, Maryland and Massachusetts, there has been little appetite to push the boundaries of ways to support labor unions or progressive labor reform.

Which is surprising, since the unionization rate in the United States has fallen to fewer than 7 percent in the private sector and 11 percent of all workers. And future prospects don’t look too bright.

In an age when many workers are becoming freelancers and contractors who supposedly are the “CEOs of their own business” (whether driving for Uber, or being a hotelier for Airbnb, or a freelancer for Upwork and dozens of other online platform companies), the fate of labor unions hasn’t been this threatened in nearly a century. The Trump administration is just the latest nail in a slowly closing coffin that has been in process for decades. It’s time for U.S. labor unions to try new tactics.

This article was originally published at In These Times on August 17, 2018. Reprinted with permission.

About the Author: Steven Hill is a senior fellow at FairVote, a former senior fellow and political reform program director with the New America Foundation, and former Holtzbrinck fellow at the American Academy in Berlin. For more information, visit Steven Hill’s website at www.Steven-Hill.com and follow him on Twitter @StevenHill1776.

Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Tuesday, July 10th, 2018

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda.

In his 13 years on the Court, Chief Justice Roberts has helped to unleash unlimited corporate money into politics, open the door to mass voter disenfranchisement and lay the groundwork to strengthen the power of corporations over consumers and employees. He has also, in the words of Justice Elena Kagan, led the conservative project of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozinski, who abruptly retired last year after a long history of sexual harassment was revealed. Previously, Kavanaugh worked with Kenneth Starr to investigate President Clinton and draft the report that lead to Clinton’s impeachment. Over his last 12 years on the D.C. Circuit Court of Appeals,  Kavanaugh has shown himself to be an extraordinarily conservative judge. An analysis by Axios determined that Kavanaugh is just slightly less conservative than the most conservative member of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s decisions regarding workers’ rights shows a disturbing trend of siding with employers on a range of issues.

In Southern New England Telephone Co. v. NLRB (2015), Kavanaugh overruled the NLRB’s decision that the employer committed an unfair labor practice when it barred workers from wearing T-shirts that said, “Inmate” on the front and “Prisoner of AT$T” on the back. Under the law, employees are permitted to wear union apparel to work, and the NLRB found that these shirts were protected under the National Labor Relations Act. The Board rejected the argument that “special circumstances” warranted limiting workers’ rights, because no reasonable person would conclude that the worker was a prison convict.

Kavanaugh rejected the Board’s legal analysis, writing, “Common sense sometimes matters in resolving legal disputes. … No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” Kavanaugh was undoubtedly correct in his understanding of the company’s desire not to have workers wear such shirts, which is precisely why the workers did so. What the unions did in wearing the shirts was apply pressure in a labor dispute in a manner that the law has long allowed. However, Kavanaugh criticized the Board’s analysis, writing that “the appropriate test for ‘special circumstances’ is not whether AT&T’s customers would confuse the ‘Inmate/Prisoner’ shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.” By shifting the focus to the employer’s public image, Kavanaugh undercut the right of workers to publicly protest and dissent.

In Verizon New England Inc. v. NLRB (2016), Kavanaugh overturned the NLRB’s ruling that workers could display pro-union signs in their cars parked in the company parking lot after the union waived its members’ right to picket. In his decision, Kavanaugh held that “No hard-and-fast definition of the term ‘picketing’ excludes the visible display of pro-union signs in employees’ cars rather than in employees’ hands, especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.” Therefore, according to Kavanaugh, the union’s waiver of the right to picket also applied to signs left in cars.

Judge Kavanaugh again overruled a pro-worker NLRB decision in Venetian Casino Resort, L.L.C. v. NLRB (2015). The NLRB had determined that the casino committed an unfair labor practice when, in response to a peaceful demonstration by employees (for which they had a permit), the casino called the police on the workers. Citing the First Amendment, Kavanaugh held that “When a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” Calling the police to enforce state trespassing laws, Kavanaugh concluded, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-worker decision involving Wal-Mart’s “meat wars.” After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Wal-Mart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. (The notoriously anti-union Wal-Mart denied that its decision had anything to do with the union vote.) After the switch, Wal-Mart refused to bargain with the meat cutters, arguing that they no longer constituted an appropriate bargaining unit. Judge Kavanaugh agreed with Wal-Mart’s argument, but did write that Wal-Mart must bargain with the union over the effects of the conversion of the employees.

Judge Kavanaugh has consistently sided with employers in labor law cases, to the detriment of workers’ labor rights. He also has argued that the Consumer Financial Protection Bureau, established in 2011, is unconstitutional, and Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, has said that his nomination “could reverse over a century of American financial regulation.”

Labor advocates should be extremely concerned about this ideological bent if Kavanaugh becomes a justice on an already very business friendly—and conservative—Supreme Court.

This article was originally published at In These Times on July 10, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Tesla Swears It’s a Fair Employer—Yet It’s Trying to Dodge a Law That Protects Workers

Friday, June 15th, 2018

Since 2013, Tesla has fought unfair-labor-practice complaints from the NLRB, insisting it’s not a union buster and that it maintains a safe factory. However, just a week before the company went in front of a judge to face some of these accusations, Tesla petitioned the state of California to get around a new labor regulation that would require the company to be certified as a “fair and responsible workplace.”

On June 11, Michael Sanchez, a Tesla employee who is currently out on medical leave, testified before an NLRB administrative law judge, claiming that he was asked to leave the company’s Fremont factory by a supervisor and security guards in February 2017 after he attempted to hand out pro-union literature. The hearing is part of a wider complaint that was originally filed against Tesla by the NLRB last August.

Tesla has denied these allegations, insisting that the company is being unfairly targeted by labor groups looking to sow division among workers.

However, just one week before Sanchez’s testimony, the company sent a letter to the California Labor and Workforce Development Agency asking to be exempt from a new state rule that would require the company to be certified as a “fair and responsible workplace” in order for Tesla customers to receive state rebates for buying electric cars. Those rebates are viewed as key enticements in Governor Jerry Brown’s plan to put 5-million zero emission cars on California’s roads by 2030.

Governor Brown stuck the rule into his cap-and-trade legislation from last year, in a move that was perceived as a win for organized labor. However, Tesla believes that the provision effectively means that the state has picked a side in the company’s labor battles and is unfairly singling them out.

“To be sure, Tesla is not perfect–no company is,” reads the letter, dated June 4. “But any objective analysis of our workplace, as opposed to the selective use of unrepresentative anecdotes in a company of almost 40,000 employees globally, demonstrates we are a leader in the workplace. There should be absolutely no question that we care deeply about the well-being of our employees and that we try our hardest to do the right thing.”

On May 23, the state put out a concept paper for public comment, which detailed how the new rule would potentially be enforced. As part of their application process for the customer rebates, companies would have to submit information about their workplace practices to the state. This would include information about the company’s illness and injury prevention program, the recordable worker injury rates, nondiscrimination measures, and policies for investigating workplace complaints, wage violations and safety concerns. Manufacturers would also have to submit a list of citations and charges brought against them by government agencies and any criminal charges that have been brought against them for workplace issues within the last five years.

The concept paper will be revised with the accepted comments, and then the unions will push for the final document to become law. The government agencies have suggested that full certification commence in two years, but the United Auto Workers (UAW) union, which has been pushing to unionize the company’s factory, wants it to take effect by July 2019.

In addition to the aforementioned NLRB complaint, which encompasses a number of different accusations, Tesla is also facing several discrimination lawsuits from former employees. Last November, a former African-American worker named Marcus Vaughn sued the company claiming that coworkers and supervisors consistently referred to him by the n-word. Vaughn alleges that when he complained about the treatment, he was fired for not having a positive attitude.

Tesla CEO Elon Musk has repeatedly defended the company’s safety record publicly. In May, he went on a lengthy Twitter rant attacking the media for covering Tesla negatively, focusing specifically on a Reveal report that detailed how the company left workplace injuries off their books. Musk also criticized the UAW and declared that his employees didn’t actually want a union. “Nothing stopping Tesla team at our car plant from voting union,” Musk tweeted. “Could do so [tomorrow] if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”

When asked to explain what he meant by the stock option comment, Musk shifted to an observation about the Revolutionary War: “US fought War of Independence to get rid of a 2 class system!” Musk wrote, “Managers & workers [should] be equal [with] easy movement either way. Managing sucks [by the way]. Hate doing it so much.” Musk’s net worth is estimated to be about $18.2 billion currently.

The new rule and the NLRB hearing comes amid additional bad news for Tesla and its employees. After misjudging the speed at which they could produce their Model 3 vehicles, the company laid off more than 3,000 people—about 9 percent of their workforce. “We made these decisions by evaluating the criticality of each position, whether certain jobs could be done more efficiently and productively, and by assessing the specific skills and abilities of each individual in the company,” Musk wrote to the company in an email. “As you know, we are continuing to flatten our management structure to help us communicate better, eliminate bureaucracy and move faster.”

The rule could be codified as early as July.

This article was originally published at In These Times on June 15, 2018. Reprinted with permission. 

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

Stop Calling It an Arbitration Agreement—Employers Are Forcing Workers to Give Up Their Rights

Thursday, May 24th, 2018

Trump-appointee Justice Neil Gorsuch begins his decision for the majority in Epic Systems v. Lewis, the landmark arbitration case decided Monday at the Supreme Court, with a simple set of questions: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?” Justice Gorsuch and the rest of the five-Justice conservative majority answered the first question in the affirmative and the second question in the negative. In so doing, the Supreme Court has ushered in a future where almost all non-union private sector workers—nearly 94 percent of the private sector workforce—will be barred from joining together to litigate most workplace issues, including wage theft, sexual harassment and discrimination.

The decision incorrectly holds that because the Federal Arbitration Act requires courts to treat arbitration agreements on equal footing with other contracts, the National Labor Relations Act, which explicitly protects workers who engage in concerted activity for mutual aid or benefit, does not protect workers’ rights to litigate claims at work. But the problem with the ruling goes much further: The entire decision is premised upon a massive fiction: that these arbitration agreements, wherein the worker loses all access to court to bring a collective action with her fellow workers, are the result of an agreement between the workers and the employer. In reality, arbitration agreements are mandatory rules imposed unilaterally by the employer—not two-sided agreements.

On April 2, 2014, Jacob Lewis, who was a technical writer for Epic Systems, received an email from his employer with a document titled “Mutual Arbitration Agreement Regarding Wages and Hours.” The document stated that the employee and the employer waive their rights to go to court and instead agreed to take all wage and hour claims to arbitration. Furthermore, unlike in court, the employee agreed that any arbitration would be one-on-one. This “agreement” did not provide any opportunity to negotiate, and it had no place to sign or refuse to sign. Instead, it stated, “I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement.” The workers had two choices: immediately quit or accept the agreement. This is not the hallmark of an agreement; it is the hallmark of a mandatory rule that is unilaterally imposed.

When Lewis tried to take Epic Systems to court for misclassifying him and his fellow workers as independent contractors and depriving them of overtime pay, he realized that by opening the email and continuing to work, he waved his right to bring a collective action or go to court. It is estimated that approximately 60 million Americans have already been forced to sign such individual arbitration agreements, and with Monday’s decision, they are certain to spread rapidly.

From the opening questions of the decision to the subsequent analysis, Justice Gorsuch and the conservative majority completely paper over the forced nature of these “agreements.” Gorsuch describes the facts of this case thusly: “The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures.” In addressing why it is necessary to honor the waiver of class or collective action, he writes, “Not only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures.”

But the workers in this case had no meaningful input or opportunity to negotiate the issue of arbitration. Describing the worker’s decision to open an email and not quit his job immediately in this manner is at best delusional and at worst deceitful.

The entire structure of the Supreme Court’s modern jurisprudence on arbitration agreements and class-action waivers is built on the idea that it is proper, appropriate and preferred for those in power to force others to waive their rights. But it wasn’t always this way. In 1925, Congress passed the Federal Arbitration Act (FAA), which sought to address the animosity some judges had towards arbitration, by requiring judges to treat arbitration agreements like other contracts. A 2015 Economic Policy Institute report describes the FAA as something that was  originally intended to be applied “to a narrow set of cases—commercial cases involving federal law that were brought in federal courts on an independent federal ground.” In essence, the FAA was designed so that businesses that negotiate contracts with each other can choose have their claims heard by an arbitrator of their choosing. “But,” the report explains, “in the 1980s, the U.S. Supreme Court turned the FAA upside-down through a series of surprising decisions. These decisions set in motion a major overhaul of the civil justice system. It is no exaggeration to call the Supreme Court’s arbitration decisions in the 1980s the hidden revolution of the Reagan Court.”

The modern case that opened the door to the flood of arbitration agreements was a 2011 Supreme Court case involving a couple that wanted to bring a consumer class action against AT&T to challenge a practice where cell phone companies offered “free” phones, but then charged customers the sales tax on the full value of the phones. Justice Scalia, writing for the five-Justice majority, treated the cell phone contract as something negotiated by the parties. He extolls the virtues of allowing these types of agreements because “affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute.” Scalia finds no issue with the fact that only one party here had power, and that it can be said with certainty that in the history of the world, no one has ever negotiated a cell phone contract with a carrier.

Now, to engage in most activities, from signing on to social media to buying a phone or airline ticket to putting a relative in a nursing home, one is provided a forced contract with an individual arbitration clause hiding inside. After Monday’s decision, it will be unlikely that many will be able to accept or remain at their jobs in the private sector without similarly waiving their right to go to court or act collectively to redress their rights.

This piece was originally published at In These Times on May 23, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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