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Posts Tagged ‘Department of Labor’

Acosta Refuses To Commit to Preserving OSHA Recordkeeping Rule

Friday, April 13th, 2018

In a hearing before the Senate Appropriations Committee today, Secretary of Labor Alex Acosta today refused to commit not to rescind OSHA’s electronic recordkeeping rule. The rule, issued in 2016, requires employers to send injury and illness information into OSHA and prohibits employers from retaliating against workers for reporting injuries.

The electronic recordkeeping rule has three major parts, two of which are in effect.

First, it required employers to send in a summary of their injury and illness data (form 300A (Summary of Work-Related Injuries and Illnesses) by December 15. A second submission (including information on Form 300 and Form 301), providing more detail about how workers were injured, was scheduled to be submitted later this year. Finally, the rule prohibits employers from retaliating against workers for reporting injuries or illnesses.  OSHA’s intent when the rule was issued was to public post on its website the individual employer data to ensure that workers and the public were aware of companies’ health and safety record. No confidential or personally identifiable information would be submitted to OSHA or posted publicly.

Over the past year, Trump’s OSHA as announced that it’s working on revising the rule. While it had been assumed that the Trump administration was mostly interested in repealing the requirement to send in the more detailed data, rumors have been circulating that an effort is being made to repeal the entire rule.

Yes or No?

Senator Tammy Baldwin (D-WI) asked Acosta at this morning’s hearing whether Acosta thought it was important for OSHA to have access to accurate injury and illness data in order to target its limited resources to the most dangerous resources.

After agreeing that such data was in fact important, Acosta was asked whether he planned to rescind the rule, yes or no?

Acosta responded that “Yes or no answers are somewhat difficult on this,” but “it is also important to respect he privacy of individuals and employees” and then, without answering Baldwin’s question, proceeded to filibuster the time with a long discussion about the non-existent issue of confidentiality.

In short, “yes or now answers” should not difficult in this case, nor is confidentiality a real issue.

First, the deadline for sending in the summary data on OSHA form 300A has already passed (although a large number of employers failed to comply), and as is evident from the form, there is no private data about any individuals.  The more detailed information was to be sent to OSHA by July 1, 2018, but that date has been delayed indefinitely while OSHA determines how to modify the regulation.

While employers do include Personally Identifiable Information (PII) on their in-house forms 300 and 301, that information was not required to be submitted to OSHA or would have been automatically scrubbed out of the submission. When the regulation was released, the agency announced that:

OSHA has effective safeguards in place to prevent the disclosure of personal or confidential information contained in the recordkeeping forms and submitted to OSHA. OSHA will not collect employee name, employee address, name of physician or other health care professional, or healthcare facility name and address if treatment was given away from the worksite.  All of the case specific narrative information in employer reports will be scrubbed for PII using software that will search for, and de-identify, personally identifiable information before the data are posted.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule because they’re afraid that if OSHA collects injury or illness information about companies’ health and safety record, the companies’ information — not the PII — will eventually be publicly released. And that won’t look good for those companies with poor health and safety records. Transparency is great — unless it hurts your bottom line.

In addition, as Baldwin suggested and Acosta acknowledged, the injury and illness data would be used to enable OSHA to target the most dangerous industries. Now that makes sense. OSHA is a tiny agency able to visit only a very small number of workplaces each year, so it makes sense that those inspections focus on the most high hazard industries, and the most dangerous companies within those high hazard industries.  No one wants to waste OSHA’s time, the taxpayer’s money, or an employer’s time inspecting a company that’s doing everything right. If possible, you want to use the data to get to those companies that are putting workers at risk.

But of course, if you happen to be one of those companies whose putting workers at risk, or a company in a high hazard industry, maybe you’re not so interested in OSHA targeting your industry. Better they waste their time wandering around aimlessly, reducing even further the small chance that you’ll ever be inspected.

So could Acosta have said “No, the rule will not be repealed, although as we have already announced, we’re working on modifying it?”  Yes.

Unless they’re really considering a complete repeal.

OSHA Inspections

Acosta proudly informed the Committee in his opening remarks that “The number of inspections conducted in 2017 increased year over year for the first time in five years despite OSHA’s suspension of enforcement activities to provide more compliance assistance and facilitate the provision of personal protective equipment during the hurricane recovery in areas affected by natural disasters this year.”

And, in fact, the number of inspections did increase by a few hundred in FY 2017.  A good thing? Yes and no.

I have nothing against increasing the number of inspections. Thirty-two thousand inspections is a small number considering the huge number of workplaces under OSHA’s jurisdiction, so the more the better.

But, there are some problems with that. Because how many inspections is not the only question. One must also ask what kind of inspections?  A little background:

Career government employees, and especially OSHA staff, are good soldiers. Give them a numerical goal and if at all possible, they’ll meet it by hook or by crook. So if the Secretary of Labor demands that you increase the number of inspections, even though a hiring freeze has caused critical staffing shortages, you go for the short, easy inspections — usually a lot of short construction inspections. And you spend a lot of time out in the field inspecting at the end of the Fiscal Year, and then stay in the office and do all the paperwork at the beginning of the next Fiscal Year.

During the Obama administration, we decided to do something a bit different. We decided to prioritize the type and quality of inspections over the pure number. Because if you’re focusing on short easy inspection to get some numbers up on the board, you may be neglecting the more complex investigations that may be more significant in the big picture — workplace violence, ergonomics, chemical plant inspections — those that may take a long time but are important to do.   We did this by counting “enforcement units” instead of just the number of inspections, and assigning more “enforcement units” to the more difficult inspections so that inspectors or offices wouldn’t be penalized for taking on the more difficult projects.

So I find Acosta’s emphasis on numbers to be ironic, because the typical Republican criticism of OSHA is that it plays a “gotcha” game — just putting citations up on the board. Which is exactly what this administration seems to be doing.   And I understand it. It certainly plays better in Congress to say you did more inspections than that Democrats.

They are the laws of the land. They need to be enforced. — Alex Acosta

The good news is that Acosta again emphasized the importance of enforcement when asked by Committee Chairman Roy Blunt why the Administration had recommended flat budgets or slight increases for DOL enforcement agencies. Acosta responded that

Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced. The men and women of the Department of Labor need the resources to enforce them  Over time even if budgets remain flat, life gets more expensive. And so we’ve asked for slight increases to continue the efforts that we’ve done this year. Because as I’ve said, enforcement matters.

Hard to argue with those words.

Tipping Over

Finally, as I mentioned the other day, the fireworks over Acosta’s tipping ruleallowing employers to steal servers’ tips evaporated when Congress included a bill prohibiting tip stealing in the FY 2018 budget bill. Acosta had come under withering attack for not including a damaging economic analysis in the proposal that would have estimated how much money servers would have lost.

But the fix passed in March and everyone congratulated each other and patted each other on the back and sang Kumbaya over this great (and rare) example of everyone working together in perfect harmony.

But Acosta couldn’t quite let it go. He needed to “just put it on the record…”

Taking up the Chairman’s offer for a few parting words at the end of the hearing, Acosta reminded everyone that when the original regulation was issued in 2011, the Obama administration also didn’t include an quantitative economic analysis. (Which was not required because the 2011 version did not make any changes in current practice.) He then went to great lengths to explain again how complicated an analysis was and how they could have made some “wildly crazy” assumptions to come up with a number, but that wouldn’t have served the public interest and Obama did the same thing no one got upset, so that’s “indicative of an unfortunate state of affairs that we’re at,” and anyway employers wouldn’t have kept tips anyway because no one would eat there and employees would walk out  but that’s why I’m happy that we all worked together and we had a happy ending.

And to all a good night.

This blog was originally published at Confined Space on April 12, 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).

Legislation from DeLauro and Clark Would Strengthen Protections for Tipped Workers

Tuesday, March 13th, 2018

As we reported in January, President Donald Trump’s Department of Labor is proposing a rule change that would mean restaurant servers and bartenders could lose a large portion of their earnings. The rule would overturn one put in place by the Barack Obama administration, which prevents workers in tipped industries from having their tips taken by their employers. Under the new rule, business owners could pay their waitstaff and bartenders as little as $7.25 per hour and keep all tips above that amount without having to tell customers what happened.

An independent analysis estimates this rule would steal $5.8 billion from the pockets of workers each year. A whopping $4.6 billion of that would come out of the pockets of working women. This is bigger than simply the well-deserved tips of restaurant workers. This is another example of extreme legislators, greedy CEOs and corporate lobbyists uniting in opposition to working people. They want to further rig the economic playing field against workers, people of color and women.

Last week, Reps. Rosa DeLauro (D-Conn.) and Katherine Clark (D-Mass.) offered up legislation that will strengthen protections for tipped workers and secure tips as the property of the workers who earn them. Department of Labor Secretary Alexander Acosta indicated that he will support Congress’ legislative efforts to stop companies from claiming ownership over tips instead of the workers who earn them.

Hundreds of thousands of you already have spoken out, sending comments of opposition to the rule straight to the Labor Department. It’s time for us to take the next step together. We can hold Trump’s Department of Labor accountable and make sure that Congress hears our opposition to this ridiculous and unfair change. Take action, and tell Acosta to support amendments to the Fair Labor Standards Act that will secure tips as the property of workers and oppose Trump’s rule legalizing wage theft.

Alaska will no longer allow workers with disabilities to be paid less than minimum wage

Tuesday, February 20th, 2018

As of Friday, Alaskan businesses will no longer be allowed to pay disabled workers less than the minimum wage, which is currently $9.84 an hour.

“Workers who experience disabilities are valued members of Alaska’s workforce,” said the state’s Department of Labor and Workforce Development Acting Commissioner Greg Cashen, in a press release. “They deserve minimum wage protections as much as any other Alaskan worker.”

The state announced last week it would repeal the regulation first put in place in 1978. Alaska joins New Hampshire and Maryland as the first states to get rid of sub-minimum wage for employees with disabilities, an act which is entirely legal under federal law, and has been since 1938 when the Fair Labor Standards Act was implemented.

The minimum wage exception was initially created to help those with disabilities get jobs, but despite its intentions, the legislation still fell short. Disability advocates argue the law is outdated and that many disabled individuals can succeed in jobs earning minimum wage or more, and that no other class of people faces this kind of government-sanctioned wage discrimination. In addition to being paid a sub-minimum wage, employees with disabilities often perform their jobs in what are called “sheltered workshops.” This term is generally used to describe facilities that employ people with disabilities exclusively or primarily, but has been interpreted by disability advocates as a form of segregation in the workplace.

Goodwill Industries is arguably one of the biggest offenders when it comes to exploiting this kind of wage discrimination. The company is one of the largest employers for people with disabilities, many of whom are contracted by Goodwill through the government’s AbilityOne program, which ensures contracts are set aside for places that employ workers with disabilities.

Goodwill, however, is a $5.59 billion organization, and many argue they can afford to pay all of their workers a fair wage.

“You’ve got entities that are doing quite well, that are raking in donations, that get government contracts to make everything from military uniforms to…pens to whatever,” says Chris Danielsen, a spokesperson for the National Federation of the Blind told The Nation. “They get these contracts, and they’re paying their workers less than the minimum wage.”

Goodwill’s own CEO, Jim Gibbons, is blind. In 2015, he raked in more than $712,000 in salary and additional compensation while his disabled employees were making less than $9 an hour in some states.

In a comment to NBC News in 2013, Gibbons defended his salary and the million dollar salaries of other Goodwill executives. At the time, Goodwill’s total compensation for all its franchise CEOs was more than $30 million.

“These leaders are having a great impact in terms of new solutions, in terms of innovation, and in terms of job creation,” he said.

Speaking of those employees with disabilities working for less than minimum wage, he punted. “It’s typically not about their livelihood. It’s about their fulfillment. It’s about being a part of something. And it’s probably a small part of their overall program,” he added.

 Just last week, disability activists were dealt a blow by the House of Representatives, which voted 225 to 192 in favor of a bill that would significantly weaken the Americans with Disabilities Act, letting businesses off the hook for failing to provide accessibility accommodations.

Twenty-two percent of Americans live with some form of disability and 13 percent of those experience mobility issues, such as walking or climbing stairs, according to the Centers for Disease Control and Prevention (CDC). The share of people with disabilities is higher among women and people of color: according to the CDC, one in four women have a disability and three in 10 non-Latinx Black people have a disability.

One in three adults who are able to work have reported having a disability, and half of those making less than $15,000 a year have reported a disability as well, according to the CDC’s numbers.

This article was originally published at ThinkProgress on February 20, 2018. 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.

Trump administration tip-stealing plan is getting hammered

Tuesday, February 6th, 2018

The Trump Labor Department’s proposal to let bosses steal workers’ tips—$5.8 billion of them—is under heavy fire. After news broke that the department hid the data showing how bad the plan would be for workers, House Democrats demanded that the Labor Department show its work:

Four House Democrats, in an oversight letter sent Feb. 2 to Labor Secretary Alexander Acosta, asked the DOL to fork over copies of all analyses completed as part of the tip pool rulemaking process. […]

In addition to demands for the DOL to divulge its analyses, the Democrats want a copy of all communication between the DOL and White House Office of Management and Budget pertaining to the quantitative economic analysis.

And the Labor Department’s Office of Inspector General said it was reviewing what happened and how. And 17 state attorneys general filed a letter opposing the rule change:

If implemented, the rescission would greatly harm millions of employees in the United States who depend on tips and would create the real potential for customers to be deceived as to whom will receive and benefit from their tips.

The tip-stealing proposal is also unpopular with the public: a poll conducted for the National Employment Law Project found 82 percent of people opposed.

None of this means that Trump’s labor secretary, Alexander Acosta, is going to back down. But once again the Trump administration is making clear where it stands—definitely not with workers.

About the Author: Laura Clawson is labor editor at DailyKos.

This blog was originally published at DailyKos on February 6, 2018. Reprinted with permission. 

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

Friday, February 2nd, 2018

The Department of Labor decided to scrub an analysis from its proposal affecting tipped workers after it found workers would be robbed of billions of dollarsaccording to former and current department sources who spoke to Bloomberg Law.

In December, the Labor Department proposed a rule that rescinded portions of Obama-administration tip regulations and would allow employers who pay the minimum wage to take workers’ tips. The department said the proposed rule would allow “back of the house” workers, such as dishwashers and cooks, who don’t typically receive tips, to be part of a tip-sharing pool. But the rule also wouldn’t prevent employers from just keeping the tips and not redistributing them.

The department never offered any estimate to the public of the amount of tips that would be shifted from workers to employers. The work of analyzing costs and benefits to proposed rules is legally required for the rulemaking process, Economic Policy Institute noted. EPI did its own analysis and found that tipped workers would lose $5.8 billion a year in tips as a result of this rule. Women in tipped jobs would lose $4.6 billion annually.

After seeing the annual projection showing that billions of dollars would transfer from tipped workers to their employers, senior department officials told staff to revise the methodology to lessen the impact, according to Bloomberg Law. After staff changed the methodology, Labor Secretary Alexander Acosta and his team were still not satisfied with the analysis, so they removed it from the proposal, with the approval of the White House.

Restaurant Opportunities Centers United, a non-profit that advocates for improvement of wages and working conditions for low-wage restaurant workers, has opposed the proposed rule and said it would push a majority-women workforce “further into financial instability.”

Heidi Shierholz, an economist at the Economic Policy Institute, told the Washington Post in December that “the administration is giving a windfall to restaurant owners out of the pockets of tipped workers.”

A department spokesman told Bloomberg Law that the department would likely publish an “informed cost benefit analysis” as part of any final rule but did not answer the reporter’s question about why the department wouldn’t allow the public to react to the analysis it created. The spokesman also claimed the department is acting in accordance with the Administrative Procedure Act, a federal statute governing the ways agencies move forward with regulations. Two purposes of the APA is to make sure there is public participation in the rulemaking process, including by allowing public commenting and make sure the public is informed of rules. The public only has until Feb. 5 to comment on the proposal without viewing the department analysis. But the public could view the Economic Policy Institute analysis created to replace the department’s shelved one.

Some senior attorneys at worker rights’ groups say that the lack of analysis could violate the APA if the department publishes the full analysis with the final rule, as the spokesman said it would, but doesn’t do so during its proposal. That would prove that the department could have created the analysis earlier but decided not to, lawyers told Bloomberg Law last week.

This wouldn’t be the first time the administration has been accused of not properly adhering to the ADA.  Many states are claiming the administration violated some part of the Administrative Procedure Act. Only a couple weeks into Trump’s presidency, Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America sought to overturn an executive order mandating that federal agencies eliminate two regulations for every regulation they create. The executive order also required that net costs of regulations on people and businesses be $0 in 2017.

The groups argued that this clearly violates a clause the APA. Judge Randolph Moss of the U.S. District Court for the District of Columbia heard arguments in the lawsuit in August and said, “It’s like a shadow regulatory process on top of the regulatory process.” However, it’s not clear if the rule has been implemented in practice. Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America are still waiting on a ruling.

Economists, labor experts, and worker advocates from the National Employment Law Project, Center on Budget and Policy Priorities, ROC United, and the Economic Policy Institute reacted to the news with outrage.

Jared Bernstein, senior fellow at the Center on Budget and Policy Priorities and former Chief Economist to Vice President Joseph Biden, said he has developed a “high outrage bar” over the past year but “this failure to disclose handily cleared that bar.”

Heidi Shierholz, senior economist and director of policy at Economic Policy Institute, said she believes  EPI’s analysis is pretty close to whatever the department of labor came up with in its shelved analysis.

“The basic economic logic is that it is really unlikely that back-of-the house workers would get any more pay if this rule were to be finalized … If employers do share those tips with them, it is likely it will be offset by a reduction in base pay. I don’t think take-home pay would be affected by this rule at all,” Shierholz said.

Shierholz added, “It is likely that the DOL found something in this ballpark too and it’s not surprising that there is just no way to do a good faith estimate and also maintain the fiction that this rule is not terrible for workers, so in that light you can see why it is no wonder that they tried to bury it.”

When asked whether any group planned to sue the department over its decision not to show the analysis to the public, Christine Owens, executive director of the National Employment Law Project, said her organization sent a request to the department asking that it withdraw the rule but that she has not heard back from the department.

“We haven’t decided what further action we may take,” she said.

Sen. Patty Murray (D-WA) released a statement demanding that the department drop the effort to propose this rule:

“This botched cover-up of evidence proving President Trump’s policies help businesses steal billions from workers shows exactly what President Trump truly cares about: helping those at the top squeeze every last penny from families trying as hard as they can to get ahead. Now that their real priorities have been exposed, President Trump should tell Secretary Acosta to abandon this effort immediately.”

This story was updated with additional quotes from economists, labor advocates, and politicians.

This article was originally published at ThinkProgress on February 1, 2018. Reprinted with permission.
About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

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

Wednesday, January 24th, 2018

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

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

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

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

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

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

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

4) Pushing immigration policies that hurt all workers

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

5) Rolling back regulations that protect worker pay and safety

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 18th, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OSHA Is Bleeding: Shrinking Government and Killing Workers

Monday, January 1st, 2018

Washington Post reporters Lisa Rein and Andrew Ba Trim published an excellent front page article today chronicling Donald Trump’s largely successful effort to shrink the federal government: “By the end of September, all Cabinet departments except Homeland Security, Veterans Affairs and Interior had fewer permanent staff than when Trump took office in January — with most shedding many hundreds of employees.”

Trump hasn’t succeeded yet in passing a budget with significant cuts, so most of the reductions have come from hiring freezes, failure to hire political appointees, and increased retirements (accelerated by buy-outs) of disillusioned and frustrated career employees.

While some people who reflexively think that government is bad are cheering, the fact is that these reductions mean less protections for workers, the environment, consumers, communities, children, the poor and just about everything that makes life in this country “great.”

The Impact on OSHA and on Workers

But you’re not reading this to understand the national cataclysm; you want to know about the effects on workers and workplace safety and health.

Anti-government activist Grover Norquist was famously quoted as saying “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”

But tragically, what we’re looking at is not just government being drowned in a bathtub, but more workers actually dying in a bathtub.

Because when it comes to workplace safety, cutting the bureaucracy means undermining enforcement, protection for whistleblowers, support for vulnerable workers and help for small businesses.  Some of OSHA’s regional staff state that because of the hiring freeze, OSHA’s enforcement and whistleblower programs are “falling apart at the seems.” The agency is “just bleeding.”

OSHA’s enforcement and whistleblower programs are “falling apart at the seems.” The agency is “just bleeding.”

When President Trump came into office almost a year ago, he implemented a government-wide hiring freeze. That freeze stayed in place at OSHA until recently, when Secretary of Labor Alex Acosta, apparently alarmed that OSHA inspection number had dropped precipitously in 2017, partially lifted the hiring freeze at OSHA, announcing in his opening remarks at a Senate hearing last month that “In August 2017, I provided OSHA with blanket approval to hire OSHA Compliance Safety and Health Officers (CSHOs), streamlining the hiring process to bring new OSHA staff on board in an expedited manner to ensure that OSHA has the necessary personnel to carry out its important work.”

But while it is true that Acosta lifted the hiring freeze for OSHA inspectors, the process is anything but streamlined from what I hear from OSHA staff. Approvals for CSHO hiring are trickling out at a snail’s pace, barely keeping up with retirements.

Second, the agency doesn’t live by CSHOs alone.

I discussed these problems with Lisa Rein, part of which she related in today’s article:

In some agencies, the number of people leaving has been crippling, according to former officials. At the Occupational Safety and Health Administration, a wave of recent retirements has depleted the managerial staff at the enforcement agency’s 70 field offices, said Jordan Barab, who was a top OSHA official in the Obama administration. In all, the agency shed 119 permanent workers by the end of September, a 6 percent drop, personnel data shows.

“It’s starting to create major problems,” Barab said. Enforcement actions must be reviewed by supervisors in multiple offices, he said, and if too many months pass, they can be thrown out. “You can’t run an enforcement agency with no managers.”

As usual, with interviews, that was only a small part of how I described the impact on OSHA.

OSHA is, first and foremost an enforcement agency. That means that in order to ensure safe workplaces, the agency must have sufficient staff to inspect workplaces to ensure that employers are in compliance with OSHA standards and other safe workplace procedures. And, ideally, the agency should have sufficient, up-to-date standards to provide a floor for workplace safety. The agency also has a robust compliance assistance program which formerly had a Compliance Assistance Specialist (CAS) in every one of OSHA’s 100 regional and area offices. Because of budget cuts over the past several years, however, many OSHA offices no longer have CASs.  OSHA also needs enough whistleblower investigators to ensure that workers are allowed to exercise their health and safety rights without fear of retaliation.

OSHA has never had enough staff to perform all of those functions adequately. The AFL-CIO reports that if OSHA were to inspect every workplace in the nation just once, it would take 159 years. And the situation has gotten significantly worse. Since 1980 when Ronald Reagan was elected, the number of workers in the economy has increased by 50% and the number of OSHA inspectors has shrunk by more than 45%. OSHA had 5.3 compliance officers per million workers in 2016, compared with 14.8 in 1980.

So where are we today and what is the impact of Trump’s efforts to shrink government?

Just hiring inspectors only addresses part of the problem. The hiring freeze continues for OSHA managers, administrative staff, whistleblower investigators and others. And this presents a major problem for workers.

As I said above, OSHA has only 6 months to complete an inspection. One day more, and the gets thrown out. Now, I’m not too worried about OSHA cases being thrown out for running over the deadline. I’m more concerned about the quality, speed and scope of the investigations. Too much work and too little staff will mean a number of things, none of them good:

  • In a quest to keep the inspection numbers up, OSHA inspectors may focus on the “easy” cases. A construction site, for example, will yield more and faster inspections and citations than a workplace violence case, a major chemical release or a case involving musculoskeletal injuries.
  • Just hiring CSHO’s and not filling managerial, administrative or legal staff just moves the bottleneck from the inspection itself, up the ladder.The larger and more complicated a case is, the more levels of OSHA (and Solicitor) review it must go through, and the greater likelihood that it will be challenged in court. If OSHA doesn’t have all of its ducks in a row, the case will be lost and if cases are lost in court because there isn’t enough managerial or legal staff to conduct a thorough review, it’s not just a legal problem, it’s a safety problem. The hazards will not  be eliminated and more workers will get injured, ill or killed.
  • And the failure to hire administrative staff means that instead of inspecting workplaces and managing cases, CSHO’s and supervisors spend their shrinking time inputting data, filing reports and doing all of the other administrative work that would better be done by administrative staff. Not exactly a good use of taxpayer dollars.
  • And even if cases aren’t dropped for failure to meet the 6-month deadline, they will take longer to issue. And being as employers don’t have to fix the problems in their workplaces until the citations are issued, workers will be exposed to dangerous conditions for longer.
  • A shortage of inspectors means that many offices only have time to react to worker fatalities and hospitalizations after they happen, rather than putting resources into pro-active planned (or programmed) inspections of high-hazard workplaces.
  • Retirements don’t happen evenly across the agency. Some area and regional offices are hit much harder than others. But a hiring freeze reduces OSHA’s ability to staff up  in those offices that are having the most shortages.   Either the workers covered by those offices are under-served, or staff has to be temporarily assigned to the problem offices, further increasing the agency’s budget problems.

The Post also notes that the Department of Labor “declined to comment on the current number of OSHA managers but said that new inspectors have been hired in recent months, helping increase the number of safety and health inspections in 2017 — the first such boost in five years.”

This is patently false. OSHA hasn’t had a budget increase since 2010,  and I can’t find anyone inside or outside of OSHA who can tell me what they’re talking about.

Whither The Whistleblower Program?

The hiring freeze also remains for whistleblower investigators. About 60% of OSHA whistleblower cases address retaliation against a worker for exercising their health and safety rights, the other 40% fall under 21 additional whistleblower laws that Congress has given OSHA to enforce — everything from environmental laws, rail safety, nuclear power plants, the Sarbanes-Oxley Act and many others.

Until the Obama administration, the whistleblower program had been neglected stepchild at OSHA — underfunded and ignored. Enormous progress was made over the 8 years of the Obama administration, creating a separate directorate, a separate budget item, making it easier to file complaints on-line, increasing staff, modernizing procedures, re-organizing management and reducing the backlog of open cases. Nevertheless, even with significant progress, the program remains troubled and underfunded, and the continuing hiring freeze threatens much of the progress made during the Obama administration with the backlog of open cases rising back to unacceptable levels.

Agencies on Death Row

The Post also discusses the impact of Trump’s — as yet unsuccessful — plan to eliminate the Chemical Safety Board. The reports of the death of the CSB is most likely premature as both the House nor the Senate budget bills fully fund the agency for FY 18, but the threat nevertheless has an effect. Aside from the obvious hit on the staff’s morale, Board Chair Vanessa Sutherland describes how the CSB’s tiny staff has to spend time planning for its own demise, even while conducting its normal business of investigating chemical plant incidents.  And although it’s not raised in the article, it will inevitably make it harder to attract (or retain) talented staff while the Sword of Damocles weighs over its head.

Conclusion

So, you might ask, how does any of this make sense?

Fourteen workers a day were killed in the workplace last year, and the number of workers killed annually has gone up for the last three years.  Workplace deaths and injuries are estimated to cost between $250 billion and $360 billion a year, and OSHA’s current annual budget is a measly $552 million.

The bottom line is that shrinking government is not just about reducing employees and “bureaucrats,” and saving taxpayer dollars; it means limbs severed and lives lost.

Post journalist Juliet Eilperin in a short article in today’s “2018: The Year in Preview” section predicts that “Trump’s war on the bureaucracy will hit some limits — it’s hard to shrink government and also keep it operating.”

But that doesn’t make me feel better.

Because maybe they don’t want to keep it operating.

This blog was originally published at Confined Space on December 31, 2017. 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). He has also worked for the House Education and Labor Committee, the Chemical Safety Board, the AFL-CIO and an earlier stint at OSHA during the Clinton administration.

2017 was a year of eroding workers’ rights

Thursday, December 28th, 2017

There have been a series of victories for labor rights in recent years. Graduate student workers at private colleges and universities now have the right to unionize. In New York, employers are no longer allowed to ask for an employee’s salary history — a question that often hurts women and people of color. And the Fight for 15 has scored wins in cities across the country.

But the Trump administration stands in the way of much of the progress labor activists are demanding. It may not be as noisy or ripe for attention-grabbing headlines as Betsy DeVos’ education department or Scott Pruitt’s Environmental Protection Agency, but Alexander Acosta’s labor department has rolled back a number of key Obama-era labor advances.

“Acosta is not a bomb-thrower,” said Jeffrey Hirsch, law professor at University of North Carolina at Chapel Hill. Unlike some of Trump’s other less traditional choices for agency heads, Acosta had already been confirmed by the Senate for three previous positions and was considered a safe choice for labor department secretary.

Still, it’s clear the department is now under a Republican administration.

The National Labor Relations Board (NLRB), which enforces fair labor practices, has an employer-friendly majority. The General Counsel of the NLRB is Peter Robb, a lawyer who management-focused firm Jackson Lewis wrote would “set the stage for the board to reverse many of the pro-labor rulings issued by the Obama board”. The Senate also confirmed to the NLRB William Emanuel, whose nomination was supported by corporate donors and industry groups like the National Retail Federation, U.S. Chamber of Commerce, and National Restaurant Association. Emanuel’s work previous focused on union avoidance tactics and among his former clients were Amazon, Target, Uber, and FedEx.

With these new additions, the Department of Labor has been busy dismantling protections for workers. Here are some of the biggest ways the Trump administration rolled back workers’ rights in 2017:

Less accountability for corporations like McDonald’s

One of the labor rollbacks that gained the most attention this year was the board’s decision to overturn the new joint employer standard that was supposed to make it easier for corporations to be held accountable for unfair labor practices at their franchises. Labor advocates expected the decision for some time after the department rescinded guidance that defines who a joint-employer is.

The Obama administration’s standard on joint employers went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business. McDonald’s has tried to avoid responsibility for violations like wage-theft for years. In 2016, McDonald’s settled a wage-theft class action and released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”

“Under the previous rule, you only needed to show [McDonald’s] had a theoretical amount of control. They reserve the right to control terms and conditions of work and controlled those conditions in an indirect manner like setting policies that other companies have to follow,” Hirsch explained. “The new case has said that no, you need actual direct control. When push comes to shove, it’s a matter of evidence and how much proof you have, so you may well still have a case against McDonald’s but you’re going to have to show that there is more actual control.”

Reduced protections for quality investment advice

In August, the Labor Department said it would like to delay a rule that would require financial advisors to act in the best interest of their customers and their retirement accounts. According to a federal court filing, the department wanted to delay implementation of the rule to July 2019. The full implementation of the rule is currently set for January 2018.

There are two standards investors have to be aware of right now: the fiduciary standard and suitability standard. A financial adviser operating under what is called the “suitability standard” is only required to make sure a client’s investment is suitable for the client’s finances, age, and risk tolerance at that point in time, but they don’t have a huge legal obligation to monitor the investment for the client. Under the fiduciary standard, an adviser must keep monitoring the investment and keep the customer’s overall financial picture in mind. In addition, advisers must disclose all of their conflicts of interest, fees, and commissions under the fiduciary standard. Right now, it’s easier for advisers to push investments that will make them money but are not necessarily in clients’ best interest, said Paul Secunda, professor of law and director of the labor and employment law program at Marquette University Law School.

“That rule has been substantially cut back, though how far back we’re still waiting to see. The current admin is in a holding pattern right now and my sense is that it could be cut back fairly dramatically even further,” Secunda said.

None of these labor department actions have been good enough for the financial industry, however. Plaintiffs in a lawsuit that included the Securities Industry and Financial Markets Association, the Financial Services Institute, the Financial Services Roundtable and the U.S. Chamber of Commerce, sent a Dec. 8 letter to the U.S. Court of Appeals for the Fifth Circuit. The plaintiffs said the delay of regulation shouldn’t hold up their appeal, where they argue the department does not have the authority to promulgate the rule, according to InvestmentNews.

Reduced worker safety

Experts on labor violations and the Occupational Safety and Health Administration told ThinkProgress they were concerned about how OSHA would respond to Hurricanes Harvey and Irma, especially since the Trump administration has slashed worker safety rules from the Obama administration. 

Trump’s OSHA has left behind regulations on worker exposure to construction noise, combustible dust, and vehicles backing up in factories and construction sites, according to Bloomberg BNA. It also abandoned a rule that would change the way the agency decides on permissible exposure limits for chemicals. The July regulatory agenda did not list any new rule-making. The president’s 2018 budget would have killed OSHA’s Chemical Safety Board, which looks into chemical plant accidents, as well as the Susan Harwood grant program, which benefits nonprofits and unions that provide worker safety training.

“OSHA is taking a turn we usually see during Republican administrations, which means a lot less inspections and enforcement and a lot more trying to get employers to self-regulate or voluntarily comply which has not really worked that well historically,” Secunda said. “People who participate in these voluntary participation programs are usually employers who are already in compliance and those who continue to be bad actors are not really impacted by these voluntary programs. OSHA is about to be run by corporate America, which is obviously not good for employees.”

Deciding to let go of Obama-era overtime rule

In July, the labor department moved to roll back an Obama administration rule that would have expanded the number of workers eligible for overtime pay by 4.2 million. The department has not appealed a U.S. District Court in Texas that gave business groups the temporary injunction they wanted.

The current threshold for overtime pay is at just $23,660 a year, and the Obama-era rule would have nearly doubled that. In 1974, 62 percent of full-time salaried workers had a salary that allowed them to be eligible for overtime, but today, only 7 percent of full-time salaried workers earn a salary below this level, according toDavid Weill, dean of the Heller School for Social Policy and Management at Brandeis University who headed the Wage and Hour Division of the department during the Obama administration.

Referring to Acosta, Weill wrote in U.S. News, “Failure to appeal this flawed decision will leave millions working long hours with low pay and abrogate his responsibility to protect the hardworking people he and the Trump administration profess to care so much about.”

Labor department focus on ‘harmonious workplaces’

In one of the NLRB’s less discussed decisions this month, it overruled the Bush-era standard Lutheran Heritage Village-Livonia. This standard went into further detail on whether facially neutral workplace rules, policies, and handbook provisions could unlawfully interfere with Section 7 of the National Labor Relations Act. (Under Section 7, it’s unlawful for employers to interfere with employees’ organizing rights.) The NLRB provides the example of employers threatening, interrogating, or spying on pro-union employees or promising employees benefits if they stay away from organizing as unlawful activity under Section 7.

Under the 2004 standard, employers could have the violated the National Labor Relations Act by instituting workplace rules that could be “reasonably construed” to prohibit workers from accessing these rights even if the employers don’t explicitly prohibit the activities.

Hirsch said he was surprised by the decision to reverse a Bush-era decision. “To me, it seems like they’re doing more than they needed to, which makes me wonder if they’re trying to make a point.”

Hirsch added that the decision appeared to carve out certain types of rules, such as a civility code in the workplace, and say they were permissible. The decision referred to employers who wanted “harmonious workplaces” and cast any opposition to such a requirement to be impractical, but Hirsch said there needs to be a balance in NLRB decisions between clarity and flexibility.

“That can be problematic bevause they’re rules that depending on the history of what has happened in that particular workplace and it could actually be viewed as fairly chilling for those employees,” Hirsch said. “… Labor and management relations aren’t always harmonious. In fact, they are designed not to be in a  lot of ways. Sometimes harsh language is used by both sides and sometimes that is OK, or we’re willing to tolerate that as part of the collective bargaining process rather than having violent strikes, like we did before the NRLA.”

‘Micro-unions’ are out of luck

The NLRB made another business-friendly decision this month when it decided that a unionized group of 100 welders and “rework specialists” at a manufacturing company with thousands of workers was improper. This means it will be easier for employers to oppose what are referred to as “micro unions” even though it can be advantageous for workers to organize this way. The decision went against eight federal appeals court rulings, according to Reuters.

LGBTQ workers’ not protected by Title VII

There is ongoing debate over whether LGBTQ workers have rights to ensure that they are treated fairly in the workplace under Title VII, part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In July, the Department of Justice undermined rights for LGBTQ people when it filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

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

Friday, December 15th, 2017

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

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

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

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

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

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

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

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

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

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

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

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