Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Trump Administration’

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.

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.

OSHA's Claims About Hiding Information on Worker Deaths Fall Flat

Friday, September 15th, 2017

Since January, government agencies under the Donald Trump administration have taken steps to hide information from the public–information that was previously posted and information that the public has a right to know.

But a recent move is especially personal. Two weeks ago, the agency responsible for enforcing workplace safety and health—the Occupational Safety and Health Administration—removed the names of fallen workers from its home page and has stopped posting information about their deaths on its data page. In an attempt to justify this, the agency made two major claims discussed below. Like many efforts to decrease transparency by this administration, these claims are unfounded, and the agency whose mission is to protect workers from health and safety hazards is clearly in denial that it has a job to do. Here’s how:

OSHA claim #1: Not all worker deaths listed on the agency website were work-related because OSHA hasn’t issued or yet issued a citation for their deaths.

Fact: It is public knowledge that 1) OSHA doesn’t have the jurisdiction to investigate about two-thirds of work-related deaths but does issue guidance on a wide variety of hazards to workers that extend beyond their enforcement reach, and 2) OSHA citations are not always issued for work-related deaths because of a variety of reasons, including limitations of existing OSHA standards and a settlement process that allows employers to remedy certain hazards in lieu of citation. (The laborious process for OSHA to develop standards deserves a completely separate post.) But neither of those points mean the agency cannot recognize where and when workers are dying on the job, and remember and honor those who sought a paycheck but, instead, did not return home to their families.

In fact, the federal Bureau of Labor Statistics, also housed in the Department of Labor, counts and reports the number of work-related deaths each year. The agency reported that in 2015, 4,836 working people died of work-related traumatic injury—”the highest annual figure since 2008.” So, another agency already has taken care of that for OSHA (whew!). But this is just a statistic. Luckily for OSHA, employers are required to report every fatality on the job to OSHA within eight hours, so the agency has more specific information that can be used for prevention, including the names of the workers and companies involved, similar to the information the public has about deaths that occur in any other setting (outside of work).

OSHA claim #2: Deceased workers’ families do not want the names and circumstances surrounding their loved ones’ death shared.

Fact: Removing the names of fallen workers on the job is an incredible insult to working families. The shock of hearing that your family member won’t be coming home from work that day is devastating enough, but then to hear that their death was preventable, and often the hazards were simply ignored by their employer, is pure torture. The organization made up of family members who had a loved one die on the job has stated repeatedly that it wants the names of their loved ones and information surrounding their deaths shared. It does not want other families to suffer because of something that could have been prevented. The organization has made it very clear that it opposes OSHA’s new “out of sight, out of mind” approach.

So why shield this information from the public? We know the Chamber of Commerce and other business groups have long opposed publication of this information. The Trump administration seems to live by very old—and very bad—advice from powerful, big business groups whose agenda it’s pushing: If we don’t count the impact of the problem or admit there is a problem, it must not exist.

This blog was originally published at AFLCIO.org on September 15, 2017. Reprinted with permission. 

About the Author: Rebecca Reindel is a senior health and safety specialist at the AFL-CIO.

Leaked Trump administration plan to close Chicago EPA office puts 1,000 jobs at risk

Wednesday, April 19th, 2017

President Donald Trump’s proposed cutbacks to the Environmental Protection Agency may include the closure of the agency’s regional office in Chicago, a move that could undermine the agency’s ability to monitor pollution in the Great Lakes and curtail its ability to implement enforcement actions against coal-fired power plant owners in the six-state region.

The workforce for the Chicago Region 5 office would be consolidated with the EPA office in Kansas, the Chicago Sun-Times reported, citing anonymous sources. Trump’s budget chief Mick Mulvaney singled out the EPA as a target for budget cuts and the agency, under the leadership of former Oklahoma attorney general Scott Pruitt, was tasked with choosing two regional office for closure by June 15. The identity of the other regional office has yet to be disclosed.

“This decision doesn’t make sense from an efficiency standpoint. Instead, this decision makes sense from an ideological standpoint,” Nicole Cantello, the head of the union representing agency employees in the region, told ThinkProgress. She received leaked information about the possible closure of the regional office and believes it accurately represents the intentions of the Trump administration.

Cantello, who also works as a lawyer in the EPA Region 5 office, added: “If you wanted to drive a stake through the heart of EPA enforcement and EPA’s ability to protect the country, this would be one way of doing it.”

News about the Trump administration’s plans to close the Chicago EPA office leaked the same week the agency discovered a potentially carcinogenic chemical had spilled from a U.S. Steel facility in Indiana into a tributary of Lake Michigan. U.S. Steel reported last Tuesday that it leaked an unknown amount of wastewater containing hexavalent chromium into a waterway in Portage, Indiana, within 100 yards of the lake.

The Region 5 office oversees environmental protection in six states surrounding the Great Lakes: Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. “It would be devastating to environmental protection in Region 5, the office that is the steward of the Great Lakes,” Cantello insisted.

A bipartisan group of lawmakers from the region are pushing back against the Trump administration’s proposal to eliminate the Great Lakes Restoration Initiative. In a March 30 letter to House appropriations committee leaders, the members of Congress explained the initiative “is showing real and measurable results, but there is still a great deal of work to do.”

EPA employees and environmental activists gather in Chicago on Feb. 6, 2017, to protest Scott Pruitt’s nomination as EPA administrator. CREDIT: AP Photo/Carla K. Johnson

Consolidating the two regions would make EPA Region 7, located in Kansas City, Kansas, the largest regional office in the nation, covering 10 states. Region 5 has expertise in dealing with the states in the upper Midwest and a deep knowledge of Great Lakes protection. “That expertise would be completely lost,” Cantello said.

Region 5 has only 500 employees, while Region 7 employs 1,000 staffers. “You could imagine how 500 people would be able to handle all the issues going on in 10 states,” she said. “It would be virtually impossible. Therefore, it would put people’s lives at stake. For the people who live in the six states, there won’t be an environmental cop on the beat.”

Under the administration’s plan, 3,000 EPA employees nationwide would lose their jobs. Closing the Chicago office, and eliminating its 1,000 positions, would help accomplish that goal. Whether any employees would be transferred to the Kansas office is unknown. But the EPA regional office in Kansas does not have adequate space to accommodate hundreds of new employees, Cantello said.

Rep. Dan Kildee (D-MI), whose congressional district includes the city of Flint, called reports of the proposed closure of EPA’s Chicago a “misguided” move that would jeopardize federal resources to help Flint recover from its water crisis.

“If true, the closure of the EPA’s Region 5 office —which serves Michigan and other states in the Great Lakes region—is very concerning,” Kildee said in an emailed statement. “EPA efforts to protect the Great Lakes through the successful Great Lakes Restoration Initiative are also critical to reduce pollution run-off and combat the threat of invasive species like Asian carp.”

EPA employees rallied in early February against the impending confirmation Pruitt as EPA Administrator, in what was the first protest by federal workers against the Trump administration. Roughly 300 people—a third of whom work for the agency—took to the street outside the agency’s Chicago regional office.

With the latest leaked information about the possible closure of the Region 5 office, Cantello said her union plans to work with members of Congress from the six states to fight back against the closure of the Chicago office.

The Trump administration plans to focus on regional offices for job cuts, not the EPA’s headquarters in Washington, D.C. Along with Chicago, employees housed in other regional offices are fighting back against the administration’s plans to gut the agency. In the EPA Region 3 office, the mood “is fear, dread,” Marie Owens Powell, an EPA enforcement officer and a local union leader, told National Public Radio’s Morning Edition.

The Philadelphia office employees hope they can persuade their representatives to save the EPA and convince friends and family to speak out in defense of the agency’s work, the union leader said. A recent poll by Quinnipiac University showed a large majority of U.S. voters oppose cutting EPA’s budget.

The proposed budget cuts are like nothing Cantello has seen in her 27-year career at the EPA. “I’ve been through many presidential transitions and have never seen this type of animosity toward our staff and animosity toward our mission,” she said. “George W. Bush, even though there were some things around the edges he wanted to do that were from a conservative bent, generally supported our mission.”

The Trump administration wants to let the states take over many of the duties of the EPA. “This idea that the states do the same work of the folks in the region is a fallacy supported by some Republicans but is not something that is a reality on the ground,” Cantello said. “The notion that there is duplication between what we do and what the states do is not reflected in reality. All the enforcement we do is requested by the states because they can’t do the work we do.”

In the six-state Midwest region, where coal-fired power plant capacity retains a sizable share of the electric power generating mix, the EPA Region 5 office has pending cases against coal plants for violations. “We don’t know if we will be allowed to follow through with those cases,” she explained. “We already have some cases on the docket against coal-fired power plants. We may not be able to get the cuts in environmental pollution that we would get under a regular course of business.”

This article was originally posted at Thinkprogress.org on April 17, 2017. Reprinted with permission.

Mark Hand is a climate reporter for Think Progress. Contact him at mhand@americanprogress.org.

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