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The New Labor Regulations Make Republicans Cry

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socialism

Republicans continue to freak out over the Obama administration’s continuing advancements in giving American workers a fair shake. They are going to do whatever they can to repeal those regulations, even though these strategies won’t work.

Buried on page 523 of the Senate’s proposed National Defense Authorization Act for Fiscal Year 2017 is a provision that would weaken Obama’s “Fair Pay and Safe Workplaces Executive Order.” That July 2014 order, which has not yet been implemented, would require that federal agencies crack down on private contractors who repeatedly violate labor law. The order would also require that private companies disclose recent labor law violations when they apply for federal contracts.

The Senate NDAA stipulates that Defense Department contractors and subcontractors will not be “compelled or required to comply with the conditions for contracting eligibility” outlined in the executive order. The House version of the NDAA, which passed last week, also includes a provision intended to undermine the order.

The proposed exemption for military contractors is part of a broader Republican campaign to roll back the Obama administration’s labor regulations.

Last week, House Speaker Paul Ryan, R-Wis., announced that he would lead the fight to undo a recent expansion of paid overtime eligibility. Business groups have vigorously lobbied against the expansion, which could make 4.2 million workers in the United States newly eligible for paid overtime.

I understand, Republicans need to go to the mat to attack such horrors as overtime pay and disclosing labor law violations. Wait, what? But of course.

No doubt they are extra sad today, because the Seventh Circuit just ruled that companies can’t force workers into mandatory arbitration instead of allowing them to file class action lawsuits.

In a case with major implications for mandatory arbitration agreements, the seventh circuit today struck down an arbitration clause that prohibited employees from pursuing class proceedings. The appeals court, in an opinion by Chief Judge Wood, held that by banning collective actions, such an agreement violates the National Labor Relations Act. The decision, Lewis v. Epic Systems Corp., conflicts with the Fifth Circuit’s holding in D.R. Horton and thus creates a circuit split.

As the seventh circuit correctly observes, Section 7 of the NLRA protects not only collective bargaining but also “other concerted activities.” These “other concerted activities,” moreover, have for decades been held to include “resort to administrative and judicial forums.” Thus, courts and the NLRB have long concluded that filing collective or class action legal proceedings constitutes protected “concerted activity” under the NLRA. By prohibiting workers from pursuing class proceedings, a mandatory arbitration clause with a class action waiver therefore requires workers to waive their section 7 rights, something no employment agreement can do.

….

It would be hard to overstate the importance of this decision for the evolving law of mandatory arbitration agreements. Unless and until the Supreme Court intervenes, the decision calls into question the legality of all mandatory employment arbitration agreements in the seventh circuit (Illinois, Indiana, and Wisconsin) that contain class action waivers. It also raises the possibility that other circuits will follow suit.

Since the Department of Labor and the judiciary obviously don’t matter, the only conclusion we can make is that if Bernie doesn’t win the nomination, both parties are the same and therefore it’s Jill Stein or bust.

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  • Denverite

    No doubt they are extra sad today, because the Seventh Circuit just ruled that companies can’t force workers into mandatory arbitration instead of allowing them to file class action lawsuits.

    I don’t read Judge Wood’s opinion as saying this. I read it as saying that you can’t have/enforce a class waiver arbitration provision in a NLRA-covered employment agreement. That is, you can still have a mandatory arbitration provision and force disgruntled employees (or ex-employees) to arbitrate, but you have to allow them the opportunity to assert class or class-like claims.

    But I’d lay some money that it’s all going to be moot. This creates a circuit split with the Fifth, so the Supreme Court is probably going to take the case, and Breyer is a fairly pro-arbitration justice.

    • efc

      Breyer joined Kagan’s Italian Colors dissent so maybe he would be willing to sign on to an opinion where class waivers were struck down because they violate the “effective vindication” rule Kagan identifies in her dissent.

  • Venerable Monk

    Hey! My partner is the attorney that argued this 7th Circuit case on behalf of the Epic employees (the plaintiffs)! And they won! I will not be fielding questions, as I only have a tenuous understanding of the specifics of the case. So proud, though!

    • Hope you all are having a celebratory dinner!

      • efgoldman

        Hope you all are having a celebratory dinner!

        I expect alcohol is involved.

    • efc

      Congratulations! Great work! Are you guys NELA members? The decision is all over the listserve.

    • DrDick

      Congratulations to your partner, who is obviously doing good work!

  • Bruce Vail

    Since the Department of Labor and the judiciary obviously don’t matter, the only conclusion we can make is that if Bernie doesn’t win the nomination, both parties are the same and therefore it’s Jill Stein or bust.

    That’s a remarkable conclusion. An alternate conclusion might be that we shouldn’t be satisfied with executive orders that the White House is not really committed to enforcing.

    • ThusBloggedAnderson

      “Not really committed to enforcing”?

      Are you really committed to being full of shit, or do you have some facts to back up that statement?

      • efgoldman

        Are you really committed to being full of shit

        Obama betrayed us! He’s no better than Reagan or Goldwater!!!!!
        :::barf:::

        • Bruce Vail

          You’re really jumping the gun here.

          Obama’s slowness to give urgency to labor issues has been a subject of steady criticism since 2009. Personally, I’d say Obama’s labor record stacks up pretty well compared to Bill Clinton’s, but neither of the two presidents is going to go down in history as a champion of the working class.

          • I’d have to say Obama has been significantly better than Clinton.

            • DrDick

              Indeed.

            • MAJeff

              And, honestly, based on the parties they are leading, I kind of expect Clinton to be better than Clinton.

              • Given union support in this primary, she definitely owes organized labor.

              • rea

                One of the things that annoy me most is the sexist assurance on the part of some of our comrades on the left that HRC’s positions on policy must necessarily be exactly those that WJC took back in the 90s.

                • MPAVictoria

                  Well she did spend a TON of time supporting them in the 90s and talks about how awesome they were in her autobiography from 2003.

          • ThusBloggedAnderson

            Waiting for you to identify an executive order re: labor that Obama’s administration hasn’t actually enforced. You know. Like you said.

            • Bruce Vail

              Sorry for not being more clear. I’m accusing the Obama administration of not enforcing the E.O. referred to in the article Erik links to.

      • Bruce Vail

        I think if the White House were committed to this they would have would issued it sometime in Obama’s first term and worked forcefully to get it implemented then. They didn’t.

        We’re now in the last year of Obama’s presidency and he is handing it off to the next president. If Trump is elected, he’ll cancel the EO outright. If Hillary is elected, it will be down at the bottom of the list of priorities for her first term.

        • Murc

          I think if the White House were committed to this they would have would issued it sometime in Obama’s first term and worked forcefully to get it implemented then. They didn’t.

          Obama spent his first term trying to work with the Republicans in good faith and meet them halfway, dude. They generally avoided doing things that would piss them off in order to not scuttle the chances of legislative deals.

          Now, there’s a colorable argument that he made an error in doing so. His administration has made a number of political missteps; the biggest one that stands out in my mind is not aggressively getting every judge they could confirmed back when they held the Senate. (They were very, very dilatory in sending up nominees.)

          But there’s a difference between “political error” and “operating in bad faith.”

          • Bruce Vail

            Yeah, I get that argument, and I’d agree up to a point. But the Department of Defense contracting policy is a little different though because we went over all this in detail in the second Clinton administration. Does anybody remember Avondale Shipyards?

          • the biggest one that stands out in my mind is not aggressively getting every judge they could confirmed back when they held the Senate. (They were very, very dilatory in sending up nominees.)

            The *only* thing that gives this any cover was the schedule. With the Republicans filibustering everything, the Senate schedule was clogged.

            But yeah, appointments were a miss, sorta with out the swing.

          • Joe_JP

            Seemed like Obama had various things to do in his first term including dealing with the economy, health care and other things. And, got some stuff done there. There is just so much the Administration is going to get done.

            As the judicial nominees, I don’t know — Republicans were filibustering a bunch of nominees. The Senate wasn’t going to rush thru nominees just to get them in while they were in controlled by Democrats. If anything, leadership could have done more there to pushback.

            Could the Administration, while everything else was going on, push for more judicial nominees? Maybe. But, as long as the filibuster was in place and Senate Dems played nice with Republicans, especially with everything else going on, don’t know how many more would have gotten thru.

            Anyway, Obama wasn’t some game changer who would go full bore here. Knew that in 2008. But, he did a lot of things in the first term (besides needing to get settled in, which takes time) and now with Congress out of the Democrats’ hands, is focusing more on regulations and carrying things out. Seems the logical approach.

            • Fake Irishman

              Also, this point is moot starting in the middle of 2011 (you know, when the administration couldn’t effectively push legislation and otherwise didn’t have it’s time taken up by pushing two SC nominees through the process. By 2013, the admin was sending up nominees in batches and really set up the final DC Circuit showdown nicely in 2013. After the Dems nuked the filibuster in November, they rolled the judges through and a very quick clip until they lost the majority: 12 circuit judges and 76 district judges in 2014 (it actually cut the number of openings by nearly 2/3s).

  • efc

    Great way to end an informative post. That’s the argument I hear all the time. That the GOP and the Dems are exactly the same specifically when it comes to drafting and enforcing labor regulations.

    Anyway… The DOL and the NLRB have been using the NLRA in creative and effective ways. In regards to the independent contractor/employee distinction the NLRB just filed an interesting complaint against an intermodal transportation company that hires its drivers as “independent contractors”. The complaint claims that the act of hiring the workers as independent contractors when they are supposed to be employees is by itself a violation of Section 7 rights and therefore illegal under Section 8(a). By improperly misclassifying the workers to be employees and therefore preventing the workers from NLRA coverage (NLRA coverage only applies to employees, not contractors) the employer is preventing the workers from exercising the section 7 rights they would have if they were properly classified as employees.

    Here is a copy of the filing.

  • efc

    I also just saw the 11th circuit upheld a decision by an arbitrator that a class waiver was illegal based on an NLRB decision the class waiver clause was a violation of the NLRA.

    Link to the (very short) opinion.

  • Bruce Vail

    Might be an interesting post to do sometime in the future, Erik, to analyze the Obama labor record vs. the Bill Clinton labor record.

    • Probably would wait until January for that, but yeah, that’s a good idea.

      • shah8

        This isn’t going to be hard to say Obama in an absolute blowout.

        Main focus, I’d say for any such essay, is just how the Clinton Democratic base and talent were much more conservative and anti-labor than Obama’s Democratic Party base and apparatchiks. Most labor law renovations back in Clinton’s day were awfully qualified and watered down.

        Both were not friends of unions, though. Obama did more for individual laborers.

  • BiloSagdiyev

    I love that political cartoon, and thanks for it, but after five minutes… I realize… other than public parks, they’re most certainly on the march on all of the others.

    They are passively on the march in that our country’s cities just don’t have many public parks, because, well, who cares/that’s weird/a master of the universe could have made money with that plot of land, you know. Seriously, long ago, Central Park was resisted on all such grounds. Our nation has a long history of a mentality that cities are bad…. and if you’re in one, who needs parks?

    Oh wait, I forgot. How could I have forgotten? You should be at work, church, or at home, eating and then going to bed.

    • Just_Dropping_By

      Do you live somewhere other than the United States? Because public parks are ubiquitous in the United States. Denver has 20,000 acres of public parkland alone: https://www.denvergov.org/content/denvergov/en/denver-parks-and-recreation/parks/city-parks.html

    • brendalu
    • Bruce Vail

      Yes, Wuerker is one of the better political cartoonists working today.

      But I’m totally mystified by 1842 Public Highways reference. Does anybody have any idea what he is talking about?

      • I assume it’s a reference to Clay’s American System and the road building aspects of it, but I’m not 100% sure.

        • Bruce Vail

          Down here in Maryland we have the National Road, or sometimes called the Baltimore National Pike:

          https://en.wikipedia.org/wiki/National_Road

          It’s claimed around here that this was the first national highway inspired by Clay’s American System. Construction started in 1811.

          • Well, that’s a bit pre-Clay as influential figure, but yes.

      • humanoid.panda

        At a guess: the South was aghast at “internal improvements.” If I recall correctly, the confederate constitution expressely banned them.

        • Hogan

          “We have rivers! What do the rest of you need roads for?”

          • Bootsie

            “You can’t ship cotton down a road, now can you?”

            • rea

              Selling slaves down the road just doesn’t have the same salutary effect.

      • BiloSagdiyev

        Also, the kind of folks who hate stimulus in 2008? Were very angry about any public investment into roads, canals, bridges and the like in the early 1800’s. It’s just how they roll.

        I’m not sure what was up their butt in 1830, but by the 1920’s, the mentality in the Missisippi river delta area was,”Pave the highway? But then the bus services will come here! And then the blacks will go to Chicago! Then who’ll pick my cotton/work my lumbermill?!” etc etc etc.

        I’m also aware of similar grumpiness in the early 20th century about improved highways moving into the mountains of NC, but I think that was just garden variety insularity. (Or, fevered dreams of negroes driving buses with Jewish moneylenders in them, you never know with these folks.)

  • Bitter Scribe

    Paul Ryan whines that many middle-class people see Republicans as nothing but obstructionists in the service of the wealthy, then turns around and does something like this.

    • Malaclypse

      Because he knows that every network will cover his complaint, while nobody to the right of Amy Goldman will cover his actions.

  • King Goat

    I can’t tell who’re the bigger assholes, the GOP for pushing this particular issue or the organization described earlier that goes around to shareholder meetings trying to dissuade firms from upping their workers’ pay. Stop punching down so much guys, you’ll wear your arms out!

  • efgoldman

    The New Labor Regulations Make Republicans Cry

    Good thing they own all that Kleenex stock, isn’t it?

    • Angle Soft Toilet Paper or Brawney Paper Towels manufactured by Koch Industries.

      • ThusBloggedAnderson

        and Sparkle, which I used to buy.

  • JL

    Coming from a slightly different angle: What do people think is a useful tactical response to something like this (sticking this kind of anti-worker piece into the NDAA) by Congressional Dems? By other Dem officials (e.g. state committees and conventions)? By non-electoral activists?

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