If driving for a gig economy platform appealed to you because you could wrap the timing of the work around the other obligations in your life, the California legislature sends its sincerest condolences [Megan McArdle, Washington Post/Paducah Sun; Michael Munger, The Hill, Steven Greenhut in July; earlier here, etc.] More: Richard Epstein, Hoover.
Legislation in the California assembly aims at heading off the prospect that private colleges and universities will require adjunct professors to begin operating on time card systems:
In recent years, a number of colleges and universities have settled faculty overtime violation lawsuits filed by the same California law firm — lawsuits that even many adjuncts say are frivolous. Stanford University, for example, last year settled for nearly $900,000 in a class-action suit regarding instructors in its continuing studies program. Attorney’s fees accounted for one-third of the settlement, so adjuncts involved were each entitled to a partially taxable $1,417. Kaplan University also settled, according to public documents. Other suits have been settled more quietly. Public institutions in California, whose adjuncts are generally unionized, have not been affected.
Private colleges and universities have responded to the ongoing legal threat by either making or planning to make their adjuncts document all of their working hours on time cards.
Tinker with its details as one will, wage and hour law necessarily proceeds on the premise of regimenting the workplace by the minute. That’s why the time clock is its symbol. [Colleen Flaherty, Inside Higher Ed]
Complying with wage and hour law these days is no easy matter, whether you’re Sen. Bernie Sanders or running a California offshore oil platform. I explain why in my new Cato post on Parker Drilling v. Newton, decided by the Supreme Court last month. More on Sen. Sanders’s travails here and here, from my Cato colleague Ryan Bourne.
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.
- Decision time coming up for administration on whether to reverse one of Obama’s worst initiatives, overtime for junior managers [Veronique de Rugy; Robin Shea]
- California observes different rule on overtime for offshore oil workers than does federal government, exposing employers to huge retroactive back pay liability [Washington Legal Foundation, Supreme Court granted certiorari last month in Newton v. Parker Drilling]
- Today in bad ideas: Philadelphia becomes latest jurisdiction to regulate shifts and scheduling in retail, hospitality [Juliana Feliciano Reyes, Philadelphia Inquirer/WHYY, Drinker Biddle/National Law Review, Max Marin/BillyPenn]
- “I’m a restaurant employee in a city with a $15 minimum wage; here’s how it’s hurt me” [Simone Barron, Washington Examiner] Virginia could wind up with a $15 minimum law before long, tough luck for rural parts of state [Hans Bader]
- “Nurses allege Corona, Calif. underpaid them, rounding down their time to the nearest quarter hour. Ninth Circuit: This can proceed as a class action. Five judges, dissenting from denial of en banc review: The only evidence in support of the nurses’ claim is a declaration from plaintiffs’ lawyers’ paralegal, which is plainly not admissible. ‘This doesn’t pass the straight-face test.'” [Short Circuit on Sali v. Corona Regional Medical Center, Ninth Circuit panel, denial of en banc rehearing]
- “The Impact of The New German Minimum Wage” [Ryan Bourne]
- Politicians interfere with a complex industry they don’t understand: when the $15 minimum wage came to New York car washes [Jim Epstein, Reason: article, 13:32 video]
- “D.C. Repeals a Minimum Wage Hike That Restaurant Workers Didn’t Want” [Eric Boehm, Reason] “Tipping lawsuit leads popular Salem restaurant to declare bankruptcy” [Dan Casey, Roanoke Times]
- Challenging a premise: “Why a federal minimum wage?” [Scott Sumner] “Pew Map Shows One Reason a National $15 Minimum Wage Won’t Work” [Joe Setyon, Reason]
- New evidence on effects of Seattle $15 minimum: benefits go to workers with relatively high experience, “8% reduction in job turnover rates as well as a significant reduction in the rate of new entries into the workforce.” [NBER] “Minimum wage hike in Venezuela shuts stores, wipes out many jobs” [Hans Bader]
- “Ontario labour minister’s office vandalized after minimum wage cap announced” [Canadian Press, CBC background of Ford provincial government rollback of Wynne-era labor measures]
- DoL plans new rules on joint-employer definition [Jaclyn Diaz, Bloomberg; Alex Passantino, Seyfarth Shaw, earlier]
- Sen. Bernie Sanders and Rep. Ro Khanna introduce legislation to punish employers whose workforce draws on government programs, and even lefty Center for Budget and Policy Priorities sees plenty of problems with that [Steve Goldstein/MarketWatch; Robert Greenstein, Sharon Parrott, Chye-Ching Huang, CBPP; Zuri Davis, Reason; related Ryan Bourne thread]
- “Prevailing Wage Legislation and the Continuing Significance of Race” [David E. Bernstein, Notre Dame Journal on Legislation]
- Study finds that after Minnesota jacked up minimum wage, youth employment and restaurant employment fell, restaurant prices rose [Noah Williams, Center for Research on the Wisconsin Economy]
- In a sleeper SCOTUS case this term, Encino Motorcars v. Navarro, on whether service advisors at car dealerships are exempt from the Fair Labor Standards Act (FLSA), Justice Thomas for a 5-4 majority came down in favor of the position that FLSA exemptions should be read fairly, rather than narrowly; let’s hope this points to a wider retreat from the unsound practice of reading unnatural breadth into purportedly remedial statutes even when they contain no instruction to do so [Federalist Society podcast with Tammy McCutchen; Sachin Pandya/Workplace Prof (critical of ruling), Andrew Strom/On Labor (likewise)]
- “Why a Democratic City Council Is Working With a Republican Congress To Overturn a Minimum Wage Bill” [Eric Boehm on D.C.’s Initiative 77] “How Regulation Eliminated Your Waiter” [Ira Stoll on California labor laws]
- 1915 study on Oregon: “The belief was very prevalent among store women that the minimum wage had wrought only harm to them as a whole.” [David Henderson quoting Marie L. Obenauer and Bertha von der Nienburg, Bureau of Labor Statistics]
- Lancaster, Calif. Mayor R. Rex Parris proposes that city ban employers from requiring male employees to wear neckties [Laura Newberry, L.A. Times]
- Reasons to settle employment-law claims: “It’s Not the Damages, It’s the Attorneys’ Fees” [Daniel Schwartz]
- “Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans” [Marc Dib, WLF; related here, here]
- I’m quoted hailing Supreme Court ruling on workplace arbitration [Jeff John Roberts, Fortune]
- Federal labor regulators versus local food truck operators [Ira Stoll]
- “What is happening to French labor law?” [Tristan Bird, On Labor]
- Sens. Marco Rubio, Elizabeth Warren team up on federal bill to curb practice of yanking occupational licenses over unpaid student debt [Eric Boehm] “Pennsylvania’s Governor Calls for Abolishing 13 Occupational Licenses” [same] Licensing reform generally hasn’t been a partisan battle, but party-line vote in California legislative committee has derailed one promising bill [same] Nebraska gets out in front on the issue with a bill sponsored by libertarian state senator Laura Ebke [Platte Institute] “You Shouldn’t Need a License to Braid Hair” [Ilya Shapiro and Aaron Barnes on Cato amicus brief in Niang v. Tomblinson]
- Alone among states, California requires a “mandatory mediation and conciliation process” for agricultural employers. Arbitrary and open to constitutional challenge [Ilya Shapiro and Reilly Stephens on Cato amicus brief for California Supreme Court certiorari in Gerewan Farming Inc. v. Agricultural Labor Relations Board]
- “Lawsuits that compel sharing economy companies to treat their contractors as full-fledged employees will only forestall the inevitable transition towards a Tomorrow 3.0 economy.” [Pamela Hobart, Libertarianism.org reviewing Michael Munger’s new book “Tomorrow 3.0”] Plaintiffs in California Supreme Court ruling: “Uber Drivers Just Killed All the Parts of the Job They Supposedly Liked the Most” [Coyote]
- Or maybe the gig economy isn’t taking over after all [Ben Casselman, New York Times; Ben Gitis and Will Rinehart, American Action Forum, on new Bureau of Labor Statistics survey finding that prevalence of contingent work has declined, not risen, since 2005]
- “Original Meaning Should Decide Arbitration Act Case on Independent Contractors” [Andrew Grossman and Ilya Shapiro on Cato amicus in Supreme Court case of New Prime v. Oliviera]
- “Disability rates among working-age adults are shaped by race, place, and education” [Martha Ross and Nicole Bateman, Brookings]