“Universities and graduate students do not have a typical employer-employee relationship…. As a faculty member, I believe unionization would be a mistake, most of all in the longer run.” [Tyler Cowen, Bloomberg Opinion; reader discussion at Marginal Revolution]
In March and April, the U.S. Department of Labor issued notices of proposed rulemaking on two of the most hotly contested issues of its predecessor Obama department, overtime for junior managers and the joint-employer rule. Tammy McCutchen:
The DOL proposes to increase the minimum salary for exemption from $455 per week ($23,660 annualized) to $679 per week ($35,308 annualized)…. If adopted, the proposed rule would replace the final rule issued by the DOL on May 19, 2016, but enjoined by the Eastern District of Texas just weeks before its December 1, 2016 effective date. The 2016 final rule would have increased the minimum salary for exemption to $913 per week ($47,476 annualized)
Earlier here and here. In addition, DoL is proposing to clarify what times of compensation and benefits employers must include in the overtime calculations.
Separately, DoL’s proposed rule on joint employment
would replace the January 2016 Administrator’s Interpretation on joint employment, which did not go through the notice-and-comment rulemaking process and was withdrawn in June 2017.
Under the FLSA, companies found to be joint employers are jointly liable for all minimum wage and overtime violations. The statute does not include a definition of joint employment and has left this determination to the courts.
The joint employment issue has become increasingly important since the National Labor Relations Board (NLRB) dramatically expanded the definition during the Obama administration in the Browning Ferris decision, recently partially affirmed but remanded to the NLRB by the D.C. Circuit. The Trump NLRB has undertaken a rulemaking of its own, proposing to narrow the joint employer definition under the National Labor Relations Act, so as to restore the law, essentially, as it stood prior to Browning Ferris. The NLRB is currently poring over thousands of comments filed for and against its proposed rule. A final joint employer rule is expected from that agency by year end.
The joint employment concept is important because, among other matters, it determines when one employer (typically larger) can be held liable for the actions of another, such as a contractor or franchisee. The proposal would adopt a definition of joint employer originating in a 1983 Ninth Circuit decision in Bonnette v. California Health and Welfare Agency, which does not sweep as broadly as the later definition adopted by the NLRB in Browning-Ferris and by the Obama administration. More: McCutchen podcast on all three issues.
- Not headed to Gotham after all: “The RWDSU union was interested in organizing the Whole Foods grocery store workers, a subsidiary owned by Amazon, and they deployed several ‘community based organizations’ (which RWDSU funds) to oppose the Amazon transaction as negotiation leverage. It backfired.” [Alex Tabarrok]
- “NLRB reverses course and restores some sense to its concerted activity rules” [Jon Hyman, earlier]
- Among papers at the Hoover Institution’s conference last summer on “Land, Labor, and the Rule of Law”: Diana Furchtgott-Roth, “Executive Branch Overreach in Labor Regulation” discusses persuader, fiduciary, overtime, joint employer, independent contractor, federal contract blacklist, campus recruitment as age discrimination, and more; Price Fishback, “Rule of Law in Labor Relations, 1898-1940” on how reducing violence was a key objective of pro-union laws, anti-union laws, and arbitration laws; and related video; Christos Andreas Makridis, “Do Right-to-Work Laws Work? Evidence from Individual Well-being and Economic Sentiment” (“Contrary to conventional wisdom, RTW laws raise employee well-being and sentiment by improving workplace conditions and culture”) and related video;
- Relief coming on NLRB’s Browning-Ferris joint employer initiative? [Federalist Society panel video with Richard Epstein, Richard F. Griffin, Jr., Philip Miscimarra, moderated by Judge Timothy Tymkovich; Philip Rosen et al., Jackson Lewis; earlier]
- “Production company hires union labor after Boston officials allegedly threaten to withhold permits for music festivals. District court: Can’t try the officials for extortion because they didn’t obtain any personal benefit; the alleged benefits went to the union. First Circuit: The indictment should not have been dismissed.” [John K. Ross, IJ “Short Circuit,” on U.S. v. Brissette, earlier]
- In 1922 a brutal mob attack resulted in the slaughter of 23 strikebreakers in Herrin, Illinois. Maybe something that should be taught in schools? [Robby Soave, Reason]
- Great moments in public employee unionism, cont’d: D.C. Metro track inspector charged after derailment with falsifying records wins reinstatement and back pay in arbitration [Max Smith, WTOP, earlier here (similar after fatal smoke incident) and here] Could be permanent? “Bus drivers’ union threatens strike over driverless buses” [Jason Aubry, WCMH (Columbus, Ohio)]
- Letting guests skip housekeeping = grievance: “Union Threatens Strike over Marriott’s Green Initiative” [Darrell VanDeusen, Kollman & Saucier]
- Stephen Bainbridge series on what’s wrong with Sen. Elizabeth Warren’s proposals [earlier, etc.] continues with a post on labor co-determination and employee involvement in corporate governance;
- “Public Sector Unions Win Big at the California Supreme Court: California citizens must now meet and confer with union bosses before qualifying any compensation-related initiatives for the ballot.” [Steven Greenhut, Reason]
- My Frederick News Post letter to the editor opposing Question D (mandatory binding arbitration and collective bargaining for career firefighters). More on mandatory binding arbitration in the public sector: Ivan Osorio et al on California, for Cato (see pp. 12 et seq.); Steve Eide, Public Sector Inc., 2013.
- “Waikiki, Hawaii hotel workers decline to join union; the union demands they pay full dues anyway, starts process to garnish their wages. Does the union’s conduct amount to an unfair labor practice? NLRB: No, the union made an honest mistake. D.C. Circuit: That ‘makes no sense.’ The union never apologized or said it made a mistake. Its message to the workers was, ‘We can do this the easy way, or we can do this the hard way.'” [John Kenneth Ross, IJ “Short Circuit”]
- “For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn’t, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn’t true. You’re fired. NLRB: Can’t fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We’re very deferential to the Board, but even so, the NLRB’s reasoning here is ‘too opaque.'” [John Kenneth Ross, Short Circuit, on Oncor v. NLRB]
- May Day replay: What happened at the Haymarket Affair? [John J. Miller] A Wikipedia footnote [Timothy Messer-Kruse, Chronicle of Higher Education]
- Decline in number of U.S. manufacturing jobs is not owing to decline in unionization [Colin Grabow, Cato]
- More for the “I thought contractual non-union arbitration was just a racket to benefit employers” files [Eric B. Meyer, Employer Handbook (prospective “tsunami” of arbitration claims against chain restaurant); Daniel Schwartz (exotic dancers win big in private arbitration)]
- “Regulating the Modern Workforce,” Federalist Society Regulatory Transparency Project symposium video with James C. Cooper, Clark Neily, Ryan Nunn, Gabriel Scheffler, John Yun;
- “Consumers do not have the option of abandoning unionized public services if they become too expensive and inefficient, as they can do with unionized services in the private sector.” [Chris Edwards, Cato on Janus v. AFSCME]
- “I’m lovin’ it: McDonald’s settles joint employer case with NLRB” [Jon Hyman] Will NLRB junk its joint employer doctrine once and for all? [Scott Shackford, Reason, in December] String of welcome NLRB rulings on other topics in late 2017 [Sharon Block, On Labor, who should not be held responsible for my evaluation of the decisions as welcome] More: Connor Wolf, Inside Sources;
- Union opt-out window at U.S. Dept. of Education will be open more than one 48-hour period per year [Frederick Hess and Grant Addison, AEI] Spot the logical flaw: claim that Janus and Masterpiece Cakeshop cases could combine to create new First Amendment right for public school teachers to strike [Andrew Strom, On Labor]
- Eighth Circuit: federal labor law doesn’t protect workers against firing over IWW flyer-posting campaign falsely claiming restaurant’s food is unsafe [Daniel Pasternak, Employment Law Worldview; earlier here and here on Jimmy John’s/MikLin dispute]
- Mark Pulliam remembers a giant of labor law, Prof. Sylvester Petro [Misrule of Law]
- In Britain, Royal Mail cooperates with some of its union locals after they vote not to deliver Mr. Murdoch’s Sun paper to homes [Adam Withnall, Independent]
- One libertarian economist’s view of right to work laws [David R. Henderson] Municipal home rule ventures into labor regulation can work both ways: “Local Right-to-Work Case Has National Implications” [Connor Wolf, Inside Sources on Lincolnshire, Ill. RTW ordinance before Seventh Circuit]
- Eighth Circuit Cato amicus defends right of videographer couple in Minnesota not to film same-sex weddings for hire if they don’t care to [Ilya Shapiro and Reilly Stephens] Meanwhile: “California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding” [Eugene Volokh, who takes a different side from Cato on expressive status of cake creation]
- “It’s all about the shared love for Disney.” Is that why they’re suing? [Hugo Martin, Los Angeles Times]
- “Whistleblower Lawyers See a Growth Area: Customs Fraud” [Henry Cutter, WSJ]
- Supreme Court hears oral argument in Janus, the public employee union fees First Amendment case [Ilya Shapiro/Washington Examiner, SCOTUSBlog coverage by various authors, Amelia Thomson-DeVeaux/538, earlier]
- Copyright: “US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal'” [Mark Savage, BBC]
- Dangerous for an advice letter from an NLRB lawyer to say that references to gender-based differences in James Damore memo “were discriminatory and constituted sexual harassment” Ken at Popehat, Robert VerBruggen/NRO, Jerome Woehrle]
Some seriously good news, finally, from the National Labor Relations Board, which had hurtled left in recent years but now has a majority of Republican appointees: 1) it overturned its notorious Browning-Ferris rule, which had threatened to impose liability on companies allegedly responsible for the working conditions of employees of other firms, as in franchise and outsourcing contexts; 2) it announced in Boeing Co. that it would drop a standard under which it had found unlawful, as interferences with NLRA rights of collective action, various widely used employer handbook policies on subjects “from confidentiality, to insubordination, to the use of company logos, to photography bans, and to conflict-of-interest rules.” [Jon Hyman]
“EEOC recently announced the availability of ‘respectful workplace’ training, which [prompted a] concern about whether overly prescriptive rules about workplace behavior (like “no negativity” mandates) might chill workers’ NLRA rights.” NLRB rulings in recent years have included protecting workers in some circumstances from being disciplined for cussing out their bosses, and the NLRB has announced the employer policies against negativity and gossip may also violate the law. At the same time, tolerating hostile and personal talk can expose an employer to liability under harassment law. The agencies are hoping to work out the contradictions among themselves. [Kate Tornone, HR Dive]
“The U.S. House of Representatives passed a bill by a vote of 242-181 on Nov. 7 that would require a business to exercise direct control of another entity to be considered a joint employer. If also passed by the Senate and signed into law by the president, the Save Local Business Act would legislatively overturn the National Labor Relations Board’s (NLRB’s) 2015 Browning-Ferris Industries decision, which ruled that entities may be joint employers even if one exercises only indirect or potential control over the other.” [Allen Smith, SHRM] Under Browning-Ferris, “franchisors and companies that employ subcontractors and temporary staffing agencies may frequently be regarded as ‘joint employers’ of franchise and subcontractor employees” and held legally responsible for their treatment [National Right To Work, quotes me] Business, horrified by the rule, has made its overthrow a major priority [Connor Wolf/Inside Sources, Sean Higgins/Washington Examiner and more] Earlier here, here, etc.