President-elect Donald Trump announced that he plans to nominate fast food CEO Andrew Puzder to head the Department of Labor (DOL). Puzder, who makes millions as a low-wage employer, fails every test for a Labor Secretary. DOL’s mission is to improve the wages and working conditions of working Americans, but Puzder wants to keep wages low and threatens to replace his fast food chain’s employees with robots if the minimum wage rises enough to crimp his profits.
He’s opposed to the new overtime rule that gave the right to time and a half pay to millions of salaried employees earning less than $47,476 a year. Walmart has already raised its managers’ pay, as did about half of all big retailers, even before the rule was supposed to take effect on December 1. But Puzder wants to kill it so he can keep working low-paid employees without paying them a dime extra for their overtime hours.
Judge Amos Mazzant, the judge who blocked enforcement of the Department of Labor’s new overtime rule, said many things that aren’t true in his opinion, including misstatements of historical fact such as when a minimum salary for exemption was first included in the regulations (it was right from the beginning, in 1938, not two years later). But Mazzant gets judicial precedent wrong, too.
The decisions of the 5th Circuit Court of Appeals control in Judge Mazzant’s Texas district. Importantly, the 5th Circuit ruled in 1966, in Wirtz v. Mississippi Publishers Corp, that the salary level test for exemption is rationally related to the determination of whether an employee is employed in a bona fide executive capacity. In a case against a publisher that claimed its executives were exempt even though it paid them less than the minimum salary for exemption, the Court of Appeals forcefully rejected the argument that the regulations are so ambiguous as to make the salary requirement arbitrary and capricious.
The decision of a judge in Texas to block the Department of Labor’s new regulations guaranteeing overtime pay to millions of workers is a legal travesty, so poorly reasoned that it invites questions about the judge’s motivation. The decision is more than just bad law, however, it is also a financial blow to people who had every reason to expect that their lives were about to be made a little easier.
The new rules, which were set to take effect today, on December 1, would have required employers to pay time and a half the regular rate of pay for each hour worked beyond 40 in a week to any employee paid less than $47,476 a year. Prior to the Obama rule, employees earning as little as $23,660 could be called “executive” or “administrative” and denied overtime pay even if they spent the majority of their workweek scrubbing floors or stocking shelves. There are 12.5 million salaried workers earning between $23,660 and $47,476, and every one of them would be entitled to overtime pay under the new rule.
People all across America who have been working 5, 10, or even 20 hours of overtime a week without any extra compensation had been told by their employers that that their long hours were about to end, thanks to the Department of Labor’s new overtime rules. Or they were told that they were going to be paid extra for their extra hours of work, or that, at least, they were going to get salary increases to make those kinds of long hours more financially rewarding. Now, many employers have put those plans on hold. At EPI we’ve heard from a number of the affected workers.
Judge Amos Mazzant’s opinion to block the Department of Labor’s new overtime rule is poorly reasoned and factually inaccurate. Judge Mazzant does not know the history of the Fair Labor Standards Act and he appears not to understand Chevron deference, a rule constructed by the U.S. Supreme Court to guide judicial review of federal agency regulatory decisions.
Let’s begin with Judge Mazzant’s astonishing unfamiliarity with the FLSA. Judge Mazzant incorrectly implies on page 2 of his Opinion that the initial regulations that accompanied the enactment of the FLSA in 1938 did not include a salary test:
“The Department’s initial regulations, found in 29 C.F.R. § 541, defined ‘executive,’ ‘administrative,’ and ‘professional’ employees based on the duties they performed in 1938. Two years later, the Department revised the regulations to require EAP employees to be paid on a salary basis.”
In fact, it was not “two years later” but right from the get-go on October 20, 1938 that the Secretary defined the exemption for executive and administrative employees to require a minimum salary of “not less than $30 (exclusive of board, lodging, or other facilities) for a workweek.”
CBO released a report on the economic impact of repealing the Department of Labor’s new overtime rule, which raises the salary level for exemption from $23,660 a year to $47,476, thereby making about 4 million employees newly eligible for overtime pay and strengthening the right to overtime pay for about 8.5 million more. CBO concludes that repealing the new rule would have no appreciable effect on employment, would cut the pay of about 900,000 salaried employees who would lose the right to be paid for overtime they actually work, and would increase employer profits.
CBO’s analysis differs in significant ways from the Department of Labor’s, which predicted much greater pay raises for newly eligible workers and much lower compliance costs for employers. CBO exaggerates the extent to which repealing the rule would increase employer profits because it inflates the compliance costs that employers would avoid if the rule were repealed.
Labor mobility is fundamental to the ability to earn good wages. The improvement in incomes and living standards over the centuries is tied tightly to the growing ability of workers to quit the job they have and take another. And it is a timeless truth that employers will try to find new ways to hamper their employees’ legal right to leave. Increasingly, they are turning to non-compete clauses that they slip into the fine print of employment contracts. Thirty million U.S. employees, many of them relatively low wage workers, are bound by non-competes.
Peasants in medieval times were generally not permitted to leave the land on which they were born, and throughout Europe and Russia they were essentially owned by the owner of the land, their lord and master. The use of indentured servitude in the cities was a less onerous but still heavy burden on young workers, who were forced to work for years with little or no compensation for a single master, whose abuse or mistreatment usually had no remedy.
Slavery is the most extreme example of a legal limitation on labor mobility and the most destructive. Slavery in the United States not only brutalized and impoverished the enslaved, it dragged down the wages of anyone forced into competition with them. Slavery’s effects on free labor were an additional reason beyond simple morality for Abraham Lincoln and the free soil movement to oppose slavery. How could free construction workers, for example, demand higher wages if their employer’s competitor was using unpaid, enslaved labor?
One of President Obama’s most important contributions to better pay and working conditions in the United States is his executive order on Fair Pay and Safe Workplaces, which he issued two years ago and is finally taking effect this month. The order, which addresses wage theft and on-the-job hazards, including sexual harassment and race discrimination, affects 25 million employees working for businesses that provide goods and services under contract to the federal government – businesses that range from janitorial services to ship builders.
The first provisions are set to take effect in two weeks – unless a lawsuit filed in Texas by various business groups succeeds in delaying or blocking enforcement of the rules.
Why is the Executive Order Needed?
The federal government purchases over $500 billion in goods and services from the private sector, and the firms it deals with employ about 20 percent of the nation’s total workforce. It is important that the government chooses to deal with honest employers and that, when given a choice of two otherwise similar contractors, it chooses to do business with the one that demonstrates superior integrity and a greater inclination to obey the law. That is common sense.
The final rule implementing President Obama’s executive order on fair pay and safe workplaces has been issued, along with guidance from the Department of Labor. This is a big deal, affecting as many as 28 million employees in the workforce of hundreds of thousands of government contractors.
The executive order puts in place a commonsense principle: when choosing which companies to do business with, choose the ones that follow the rules rather than the law breakers. Tax dollars should go to contractors with a record of integrity and business ethics, and should not be spent on bad actors. The executive order makes it clear that violations of labor law are an indication of bad ethics and a lack of integrity that must be considered when contracts are awarded.
As part of the contract approval process, federal contractors will have to reveal to the contracting agency any labor law violations they have been found guilty of committing in the previous three years. An agency can refuse to grant a contract to a company that has not resolved its violations. Today, by contrast, it is perfectly normal that a company with several OSHA violations, a National Labor Relations Act violation, and a judgment for wage theft and overtime pay violations could win a $200 million contract from the Department of Transportation or the Defense Department. In fact, the GAO found that almost two-thirds of the 50 largest wage-and-hour violations and almost 40 percent of the 50 largest workplace health-and-safety penalties issued between FY 2005 and FY 2009 were made against companies that went on to receive new government contracts.
The Department of Labor has issued an update to its overtime rules that will bring an additional 12.5 million salaried employees under the exemption threshold, the level below which they are guaranteed overtime pay if they work more than 40 hours in a week, regardless of their job title or duties. The Department of Labor estimates that about 4 million employees will gain the right to overtime pay for the first time, and 8 million more will have their right to overtime pay strengthened.
Business groups know that with wages stagnant and profits at all-time highs, they are unsympathetic opponents of the rule, so they have been focusing attention on non-profits. The Society of Human Resources Management, for example, has adopted Operation Smile, a non-profit that helps coordinate cleft palate surgeries in less-developed countries, as its poster child. An Operation Smile executive testified in the U.S. Senate against the new overtime rule, claiming that it would raise the organization’s costs dramatically and reduce its ability to deliver cleft palate surgeries:
“Yet still, this proposed update will increase our payroll cost by nearly $1 million annually affecting over 50 percent of our workforce. This is not a financial cost we can absorb. Considering that a cleft lip surgery costs an average of $240, this would mean nearly 4,200 fewer surgeries provided globally each year.”
Gretchen Carlson is doing working Americans a real service by suing Roger Ailes, the CEO of Fox News, for sexual harassment. First, when a powerful, high profile CEO like Ailes is called out for disgusting behavior, it reminds workers and their bosses everywhere that women have a legal right to be treated with respect in the workplace.
Carlson is doing something else: she is boldly fighting the latest technique employers are using to avoid justice, to get away with sex or race discrimination, and to escape lawsuits for wage theft—putting binding arbitration clauses in employment contracts, which keeps cases out of the state and federal courts and push them into private dispute resolution systems that systematically favor employers.
Millions of working Americans are subject to arbitration clauses that they don’t even know about. More and more employers are forcing their employees, as a condition of being hired or of remaining employed, to waive the right to sue in a court if their employer violates the law. Workers must accept a process they often don’t understand, where the costs of seeking justice might be far higher even as their chances of winning or obtaining a just award of damages are reduced dramatically.
The system-wide budget for the University of Tennessee is more than $2 billion a year. Rep. Phil Roe (R-Tenn.) claims that the new Department of Labor overtime rule, which requires time-and-a-half overtime pay for many salaried employees earning less than $47,476 a year, will add $9 million in new costs. This is less than half of 1 percent of the annual budget, yet Rep. Roe claims this will force a 2 percent tuition increase. That does not add up.
Rep. Roe has not presented any evidence that the University of Tennessee will actually experience $9 million in new overtime costs, and given his math problems, there is reason to doubt. But to put his claims in perspective, we should note that without any new overtime or minimum wage costs, the University of Tennessee has been raising its tuition in response to falling state appropriations. As a recent University of Tennessee trustees’ report declared:
State appropriations to higher education have been stagnant or declining for several years… Higher education has responded to the decline in state appropriations by increasing tuition, providing no salary increases to faculty and staff, not filling or eliminating vacant positions, and becoming more efficient in the delivery of instruction, research, and public services.
In 2014, for example, tuition for various classes of in-state and out-of-state students increased between 2 and 6 percent, even though salaries were frozen. The drivers of rising tuition costs have nothing to do with Department of Labor regulations. But with appropriations shrinking, one can imagine that the desire of university officials to get uncompensated overtime work from its employees is increasing, and the updated DOL rules will provide significant protection from excessive overwork.
Universities oppose paying their postdocs overtime, but will pay football coaches millions of dollars
Colleges and universities have made the indefensible argument that they can’t afford to pay their low-level salaried employees for their overtime under the Department of Labor’s new overtime rule. Universities have singled out postdoctoral researchers, many of whom spend 60 hours a week or more running the labs that turn out the nation’s most important scientific advances, as a group of employees that would just cost too much if they had to be paid for the extra hours they work each week.
Analyzed on their own, these postdocs—who are among the best-educated and most valuable employees in the nation, on whom our future health and prosperity depend, in part—obviously deserve to be paid for their overtime hours. After all, at a salary of $42,000 a year, these postdocs are being paid about $13.50 an hour (less than fast food workers are demanding).
When juxtaposed against the inflated salaries of university administrators with less stellar academic credentials making $200,000 to $3 million a year, the case for overtime compensation is only stronger. The comparison that really drives home how unfairly universities are treating their postdocs, however, is with the universities’ football coaches.
Note: The highest available head coach salary was selected for each state. Source: Data from USA Today and HKM Employment Attorneys LLP
Universities oppose paying their postdocs overtime, but will pay football coaches millions of dollars: Top NCAA College Football Coaches’ Salaries by State, 2015
University of Alabama
University of Alaska
University of Arkansas
University of Colorado
University of Connecticut
University of Delaware
University of Georgia
University of Hawaii
University of Illinois
University of Iowa
University of Kentucky
University of Maine
University of Maryland
University of Michigan
University of Minnesota
University of Mississippi
University of Missouri
University of Montana
University of Nebraska
University of Nevada
University of New Hampshire
University of New Mexico
University of Buffalo
North Carolina State
University of North Dakota
University of Oklahoma
University of Oregon
University of Rhode Island
University of South Carolina
University of South Dakota
University of Tennessee
University of Texas
University of Utah
University of Vermont
University of Virginia
University of Washington
University of West Virginia
University of Wisconsin
University of Wyoming
Note: The highest available head coach salary was selected for each state.
Source: Data from USA Today and HKM Employment Attorneys LLP
The Department of Labor has issued a new rule, which expands the right to be paid time-and-a-half for overtime to salaried employees who earn less than $47,476 a year. Business groups that oppose the new rule claim that salaried employees will lose important work schedule flexibility when they become eligible for overtime pay. But the evidence shows this fear is unfounded, and, in fact, salaried workers who earn less than $50,000 a year currently have barely more flexibility at work than hourly paid employees.
An EPI analysis using General Social Survey data by Penn State labor economist Lonnie Golden shows that:
- Almost half—47 percent—of salaried workers earning less than $50,000 a year report that on a daily basis they “never” or “rarely” are allowed to change their work starting time and quitting times, while only 20 percent of salaried workers who earn $60,000 or more per year report never or rarely being allowed to change their schedules.
- Salaried workers earning less than $50,000 a year have no more ability to take time off during work for personal or family matters than hourly workers at the same level. Thus, “switching” employees from salaried to hourly status or requiring employers to track or monitor their hours for purposes of overtime pay would not reduce this valuable type of work schedule flexibility for employees. If we consider regularly being required to work overtime an indicator of inflexibility in one’s work schedule, salaried workers earning between $25,000 and $50,000 a year have about the same or an even greater likelihood of working mandatory overtime than their hourly counterparts. Thus, raising the overtime pay salary threshold for exemption to $47,476 should, if anything, provide the newly eligible workers somewhat greater flexibility to refuse unwelcome work beyond their usual number of hours per week.
In light of these conditions and findings, it is unsurprising that salaried workers generally report higher levels of work-family conflict and work stress than do hourly paid workers. It is also important to note that nothing in the new rule requires any employer to change any employee from salaried pay to hourly pay. That decision is entirely within an employer’s discretion. Many employers, including small business owners such as the National Retail Federation’s witness at a congressional hearing last October, already track the hours of salaried employees and provide comp time and bonuses based on overtime hours.
Explaining the differences between EPI and DOL estimates of workers affected by the new overtime salary threshold
In our report on the new overtime rule, EPI estimates that it will directly benefit 12.5 million workers. At first blush, our evaluation of the impact of the rule differs significantly from the widely circulated Department of Labor (DOL) assessment that 4.2 million workers will directly benefit from raising the salary threshold—meaning they are currently legitimately exempt because of their duties, but will be covered by the new threshold. DOL also notes that 8.9 million workers, meanwhile, will have their rights strengthened by the higher salary threshold, for a total of 13.1 million directly affected by the rule (600,000 more than our estimate). Additionally, of the 8.9 million salaried workers whose overtime rights would be strengthened, DOL notes that about 732,000 regularly work more than 40 hours a week, but are currently incorrectly classified as ineligible for overtime—bringing the total number of workers DOL estimates will be newly eligible for overtime pay up to 5 million.
We believe that many more workers will be newly eligible for overtime pay. Our assessment differs from DOL’s because the department assumes, incorrectly in our view, that overtime eligibility was not eroded by changes to the OT rules implemented by the Bush administration in 2004. We provided detailed evidence last year showing that overtime eligibility has been severely eroded since the late 1990s, when DOL computed the exemption probability estimates by occupation that it still relies on today. We concluded that:
…reliance on judgments made in 1998 provides an unreasonably sunny view of today’s workplaces that ignores changes in the law implemented in 2004, various court decisions, and the corresponding behavior of employers to limit the ability of workers to obtain overtime pay.
The 4.2 million employees DOL estimates will be newly entitled to overtime pay are limited to those who both meet duties tests establishing that their primary duty is executive, administrative or professional, and earn a salary higher than the old exemption threshold ($23,660 a year) but less than $47,476. For example, an accountant earning $40,000 or a bank branch manager earning $45,000 are legitimately exempt under the current rules but will be entitled to overtime pay because their salary is below the new threshold.
Tomorrow, the Vice President is expected to announce the U.S. Department of Labor’s issuance of the final rule on overtime for salaried employees. Rumor has it that the rule will guarantee overtime pay to anyone working more than 40 hours in a week if their salary is less than $47,500 a year or $913 a week. That is less than DOL proposed last year, but still a very significant increase that will mean millions of employees will get raises or have their weekly hours scaled back to a more humane level. About 12.5 million employees will either be newly entitled to overtime pay or will have their rights strengthened so that they don’t have to rely on a complicated analysis of their job duties to determine that they have a right to time and a half for their overtime hours.
Reporters and Hill staffers wonder who are the people who will get raises, a question that is both easy to answer and difficult. The easy part is that employees earning close to, but less than, the new threshold will get raises if they typically work overtime. It will be cheaper and easier for the employer just to give them a raise of a couple of thousand dollars than to track their hours and pay them time and a half.
An obvious example is postdoctoral researchers, who typically earn $42,000 to $45,000, who work 50 to 60 hours a week, or more, conducting critical cancer and other biomedical research, physics, chemistry, biology, or math research. Paying them overtime for their normal, excessive workweek would be so expensive that their universities will give them a raise above the threshold in order to avoid it. The result will not just be better-rewarded researchers, but less turnover and stronger commitments to work that might benefit the entire nation and even the world.
In the comments it submitted for the rule-making record, the American Bankers Association provided good examples of employees in its industry who will benefit. The Bankers testified that banks commonly have various managers, including check processing managers, branch managers, IT managers, credit analysts, and compliance officers, who are currently treated as exempt and are denied overtime pay. But in many areas, their median salaries are fairly low: $45,400 for branch managers in Akron, Ohio and $46,300 in El Paso, Texas. Check Processing Managers in Little Rock, Arkansas earn a median salary of $45,800 while they earn a median $45,200 in Brownsville, Texas. It’s likely that their employers will give them all raises if they currently work even four or five hours of overtime a week.
It gets more difficult to predict when the salaries are lower. Will a university that pays its postdocs an exploitative $38,000 a year give them a raise above the new threshold? It probably depends on whether the postdocs are working more than 50 hours a week, at which point it’s cheaper to pay the threshold salary for exemption than to pay for each hour of overtime at 1.5 times the regular rate of pay.
Many reporters have told me that they are paid less than the salary threshold but are treated as exempt and denied any overtime pay. Reporters in high-cost areas such as New York, Washington, DC, or Boston are almost certainly going to receive salary increases, unless their pay is atypically low. I imagine that even in the South, many reporters are paid enough (and their hours are long enough) that a salary increase will be cheaper for their employer than paying overtime.
They probably won’t all get salary increases, but 2.6 million salaried employees covered by the Fair Labor Standards Act earn between $23,660 and $47,500. If they work substantial amounts of overtime now, they have a good chance that their salaries will be raised above the new exemption threshold.
The White House released a report this morning that illuminates another part of the complex problem of stagnating wages—the rise of non-compete agreements and their spread to low-wage employment. Non-compete agreements, or “non-competes,” are contracts that ban workers at one company from going to work for a competing employer within a certain period of time after leaving a job. They can make sense when a worker has trade secrets or intellectual property in which the employer has invested. But they make no sense when applied to health care workers, retail and restaurant employees, and other low wage employees. All they do is limit opportunity and shackle people to an employer who will have less incentive to give a raise to retain them.
Employers are imposing non-competes in occupations with no possible trade secret justification—even doggy day care providers! The Treasury Department has found that one in seven Americans earning less than $40,000 a year is subject to a non-compete. This is astonishing, and shows how easily businesses abuse their power over employees and restrict their rights, as they increasingly do with forced arbitration clauses that take away the right of workers to seek justice in the courts. In both cases, workers often accept jobs without ever knowing that they have signed their rights away.
The Treasury Department has done groundbreaking work to show that non-competes have a measurable, negative effect on wages, as one would expect from a practice that limits employee mobility. The report also provides evidence that non-competes can reduce entrepreneurship and innovation.
The Department of Labor (DOL) is about to release a final rule that will require overtime pay for millions of salaried employees who currently can be required to work long hours for no more pay than they receive for a 40-hour week. This will give them either more money or more time with their families or for themselves.
But the overtime rule naturally makes some employers unhappy, since they can currently get 60 hours of work from many employees for only 40 hours of pay. Even some non-profit human service providers, many of which are not even covered by the Fair Labor Standards Act (FLSA), oppose DOL’s updated rule.
An association of community providers serving people with intellectual and developmental disabilities (the American Network of Community Options and Resources, or ANCOR) commissioned a “Cost Impact Scoring Memo” by a company called Avalere to estimate the impact of the proposed overtime rule on its member agencies. Neither the survey questions, the actual responses, nor the response rate were included in Avalere’s report. But it is clear that the cost estimates are deeply flawed.
For more than two years, the Obama administration has been working on restoring and strengthening working people’s right to receive overtime pay for working more than 40 hours per week. It’s been reported that the salary threshold under which all workers, regardless of their title or responsibilities, will be eligible for overtime will be set at $47,000 a year. While this is slightly lower than DOL’s original proposal, it represents a significant step forward in the effort to boost wages for working people.
If the salary threshold is indeed set at $47,000, it will directly benefit 12.5 million workers. 4.8 million workers will be newly eligible for overtime protections and another 7.6 million will be more easily able to prove their eligibility. All told, about 33 percent of the salaried workforce will be eligible for overtime, regardless of their duties on the job.
By restoring their right to be paid for the hours they work, President Obama and Secretary of Labor Perez are giving a raise to millions of working- and middle-class Americans. They deserve praise for their efforts.
On September 11, 2001, almost 3,000 people died in the attacks on the World Trade Center, the Pentagon, and the airliner crash in Pennsylvania. That tragedy is being compounded by the growing toll of cancer, lung disease and other illnesses related to the attack, particularly in the New York metro area, where first responders were exposed to a sickening mix of chemical and biological toxins. USA Today reported that “more than 9,000 claimants have been determined eligible for compensation of medical bills and other expenses,” and that 2,620 of the approved cases were cancer-related. This second wave of illness and death is taking place out of the public spotlight, but it is real and is causing suffering in thousands of families.
During the years since 9/11, a much larger wave of workplace deaths has been crashing down on American families without drawing much attention from the public or the media. Every year, more people are killed from injuries in the workplace than were killed on September 11, 2001. The number of fatal injuries has been as high as 5,840 but never lower than 4,551—this translates into roughly 65,000 unnecessary deaths resulting from negligence or the reckless indifference of employers who continue to send workers into unshored trenches, onto roofs without fall protection, into confined spaces filled with toxic gas, and into factories and mills with dangerous levels of explosive dust.
The U.S. Department of Labor is about to issue a final rule that will increase the number of people entitled to overtime pay when they work more than 40 hours in a week. The rule will simply say, in effect, that if an employee earns less than $50,440 a year (or close to that—we won’t know the final number until the rule is released), she must be paid time and a half when she works more than 40 hours a week, even if she is a salaried employee, and even if her employer calls her a manager, professional, or supervisor.
This is a consequential move, which will improve the lives of many working people in a number of ways. Millions of employees who work long hours will get paid overtime for the first time. Millions of other workers who have been working long hours, at a cost to their health and their families, will have their hours reduced to 40 hours a week. Millions more will get a raise above the threshold, because their employer can continue to avoid paying overtime. And hundreds of thousands of people will get jobs because employers will reduce the hours of some employees to avoid paying overtime and hire additional people to do the work at straight time wages.
Many colleges and universities have complained that they cannot afford it. They don’t want to pay for overtime hours that have been free for years. At a congressional field hearing in March, the University of Michigan’s associate vice president for Human Resources said it would be “cost prohibitive” to raise salaries or pay overtime for post-doctoral researchers and others earning less than $50,000 a year. The coalition of universities and colleges lobbying to weaken the rule suggests a salary threshold “between $29,172 and $40,352” as the point where overtime pay could be denied. The U-M associate vice president went on to conclude that, “The climate for most colleges and universities in the U.S. is one of ongoing financial pressures that would curtail hiring new employees or increasing compensation as a result of these FLSA changes.”
A trial court in Wisconsin has ruled that the state’s new law banning union contracts that make every employee the union represents pay his fair share of the costs of representation is unconstitutional.
The union plaintiffs and the court took a fairly novel approach to this issue and ruled on grounds I had never considered: compelling a union to represent non-dues-paying free riders (as the law does) means the state is taking the union members’ dues and forcing them to spend it on free riders without any compensation by the state. It’s an unconstitutional taking without just compensation, in violation of Article 1, section 13 of the Wisconsin constitution. A similar argument under the Fifth Amendment of the U.S. Constitution was made by Judge Diane Wood, dissenting in Sweeney v. Pence, 767 F3d 654, 683-84 (7th Cir 2014), where the majority upheld Indiana’s identical law.
The state requires unions to represent every member of the bargaining unit fairly and equally, so the union can’t avoid spending from its treasury when a non-dues-payer demands that the union take his grievance, in a situation where it would take a union member’s grievance. That representation can involve arbitration fees and the costs of a lawyer, which can easily exceed $10,000. The state imposes this burden on the union for the “public purpose [of] making the business climate in the state more favorable,” but it offers the union no compensation at all. The court rejected the notion that giving the union exclusive bargaining rights was sufficient compensation: “The proposition that winning an election is sufficient compensation and that all subsequent work must be done for free does not make any more sense than the proposition that there is a free lunch.”
The Department of Labor (DOL) is about to release a final rule that will require overtime pay for millions of salaried employees who currently can be required to work long hours for no more pay than they receive for a 40-hour week. This will give them either more money or more time with their families or for themselves.
But the overtime rule naturally makes some employers unhappy, since they can currently get 60 hours of work from many employees for only 40 hours of pay. Even some non-profit human service providers, which for the most part are not even covered by the Fair Labor Standards Act (FLSA), oppose DOL’s updated rule. This might be because they don’t understand the law, but that misunderstanding hasn’t stopped them from paying for and publishing the first of what will likely be a wave of spurious reports and cost estimates of the new rule.
An association of community providers serving people with intellectual and developmental disabilities (the American Network of Community Options and Resources, or ANCOR) commissioned a “study” by a company called Avalere to estimate the impact of the proposed overtime rule on its member agencies. Sadly, Avalere’s report is little more than a collection of baseless assumptions adding up to an absurd result. Neither the survey questions, nor the actual responses, nor the response rate were included in Avalere’s report.
A new report by Andrew Stettner, senior fellow at The Century Foundation, brings needed attention to the nation’s troubled unemployment insurance (UI) programs. The report concentrates on crucial financing questions, noting that the lack of UI state reserves prior to the Great Recession led to significant cuts in state programs in recent years, with benefit recipiency rates reaching historically low levels in 2014 and 2015. In particular, Stettner notes that six out of every seven unemployed individuals in the most restrictive Southern states go without benefits, a level that calls into question whether those states still provide meaningful social insurance. At the same time, low reserves continue to threaten a majority of states while we head inevitably toward the next recession. According to the report, only 18 states currently meet recommended trust fund levels.
Stettner recounts the main facts in his overview of recent UI developments, including recent state UI benefit cuts and financing changes. Despite these benefit cuts and financing changes, he reports that state reserves are less than 60 percent of the trust fund reserves found prior to the recent recession. Worryingly, many of the states adopting benefit cuts will remain at low solvency levels when the next recession arrives.
Wayne Vroman, a long-time expert on UI financing at the Urban Institute, has reinforced some of Stettner’s observations on UI financing in a recent report. Vroman has written about UI financing since the 1980s, and this report shows a troubling pattern he has called attention to in recent years. Our 13 biggest states—where about two-thirds of benefits are paid and UI taxes collected—do a remarkably poor job of UI financing. Vroman finds that “program revenue responded more slowly in the 13 big states and their benefits were reduced more when compared with the other states in the state UI system.” Vroman’s more technical approach presents a number of regressions trying to better understand why big states fail to adequately finance their state UI trust funds. While his paper can’t fully explain the big states’ failures, Vroman does identify factors that make UI financing stronger, most notably the indexation of the taxable wage base.
The Department of Labor has taken another significant action to protect American workers from harm by issuing a final rule to control employee exposure to silica dust, which destroys lung tissue and causes cancer, disabling thousands of workers every year and killing hundreds more. Secretary of Labor Tom Perez and OSHA Administrator David Michaels have persevered against a political hailstorm to finish this rule, which was first conceived more than 35 years ago.
Some employers will complain that it’s too expensive to protect their employees from lung disease, but it’s not. Thousands of businesses, in construction, mining, brick-making, and other industries already meet the standard. A dent in the profits of the businesses that haven’t cared enough in the past to do what was needed is no reason to back away now from safer workplaces and better lives for millions of Americans.
Ultimately, the decision to issue this rule rests with President Obama, who deserves credit for putting people first.
Senators Patty Murray and Sherrod Brown, together with Rep. Rosa DeLauro, are tackling one of the most important employment issues of the 21st century—wage theft, the failure of employers to pay employees what they are legally owed. This is a serious social and economic problem, which I have estimated could amount to more than $20 billion a year in stolen or underpaid wages, including non-payment of overtime pay, failure to pay the federal, state or local minimum wage, failure to pay statutorily required prevailing wages, forcing employees to work “off-the-clock,” taking illegal deductions from the paychecks of drivers misclassified as independent contractors, and even failure to pay anything at all. A study by the U.S. Department of Labor suggests that minimum wage violations alone range from $8 billion to $14 billion a year.
The consequences of these losses are serious: increased poverty, hardship for the near-poor, lost tax revenues for governments, including lost Social Security and Medicare contributions, and increasing inequality. When the employers who commit wage theft go unpunished it undermines their law-abiding competitors and generally diminishes respect for and faith in the rule of law.
Just as raising the minimum wage could save hundreds of million dollars in safety net program expenditures, failing to pay the current minimum wage causes safety net spending to increase considerably. As DOL found in its recent study of minimum wage violations, “Minimum wage violations led to $5.5 million in additional breakfast benefits in California and $3 million in New York, in FY2011. The school lunch program spent an additional $10.1 million in California and $4.8 million in New York in FY2011 due to minimum wage violations.”
Dozens of Republican members of Congress and two Democrats—Collin Peterson (D-Minn.) and Brad Ashford (D-Neb.)—have signed a letter to Secretary of Labor Thomas Perez about the Department of Labor’s (DOL) proposed rule on overtime pay for salaried employees, calling on him “to reconsider moving forward with this rule as drafted.” Oddly, a good part of the letter complains about provisions that are not in the proposed rule “as drafted.” The signers should be thanking the secretary, rather than complaining.
In particular, the letter complains that even though the proposed rule makes no change in the current regulation’s “duties test,” which identifies whether an employee’s job duties are those of an executive, professional, or administrative employee who might be exempt from overtime pay, the secretary does not spell out his future intentions. The signers worry, for example, that DOL is considering a common-sense tightening of the test to limit exemptions to employees who spend most of their time engaged in exempt duties. (The current duties test allows exemption of employees who spend nearly 100 percent of their time doing routine chores such as serving customers, running a cash register, stocking shelves, sweeping floors, and cleaning bathrooms.)
But, for better or worse, that change is not in the rule “as drafted.”
Every day, events remind us why Congress created and continues to fund the Occupational Safety and Health Administration (OSHA). Cranes collapsing in New York and Cincinnati, mill explosions in Georgia, a foundry worker crushed in Ohio, construction workers falling to their deaths throughout the United States. When OSHA was created in 1970, 14,000 workers were killed on the job. Today in a much larger workforce, the number of on-the-job fatalities is less than 5,000 a year. Workplaces are undeniably safer today, in large part because of the training and education OSHA has provided and required employers to provide, its grants to union and non-profit worker safety training programs, the mandatory health and safety standards and guidance it issues, and its enforcement efforts. But they aren’t safe enough. In addition to the toll of deaths, nearly 4 million work-related injuries and illnesses are reported each year, and many more go unreported.
Enforcement is essential because standards and rules mean nothing if they aren’t followed, and a stubborn minority of businesses just don’t care enough about their employees to work safely and protect them from known hazards. Even hazards we’ve known about for a thousand years are routinely ignored by greedy contractors trying to cut corners and squeeze more profit out of their employees’ work.
Nothing better illustrates why workers need a strong enforcement effort from OSHA than trenching violations, such as putting workers into ten-foot deep trenches in loose soil without shoring the sides or protecting them with a metal trench box. Year after year, two to three dozen workers are killed when trench walls cave in, burying them in tons of dirt and rock, crushing their lungs. A single cubic yard of soil can weigh up to 3,000 pounds, and a worker caught by a cave-in can die even when his heads is not buried.
President Obama has announced a package of reforms to repair some of the damage done in recent years to the unemployment insurance system and to provide more help to workers at risk of losing jobs—incentives for employers to retain workers, more income support for job losers, and more help getting retrained and back to work. Reforms are needed, and most of the president’s proposals are obviously helpful.
When the economy crashed in 2007 the federal-state system of unemployment insurance (UI) was far from ready. States had had five years since the previous recession to replenish their UI trust funds, improve coverage (with the help of generous federal grants provided during the Bush administration) and plan for the next downturn. Yet when the crash came and the unemployment rate rose to 10 percent, UI trust funds had not been refilled. Many states had unwisely cut taxes rather than accumulate surpluses that could be drawn down in a recession. By 2007, only 17 states were minimally solvent. Some states—but not many—had extended coverage to workers with unstable employment histories, seasonal workers, and poorly paid individuals who previously would not have qualified for benefits. If you had to give the states a grade on preparedness, a D+ would be generous.
The result was a disaster. Thirty-six states ran out of money and had to borrow in order to pay benefits, with the loans peaking at $47 billion in 2010. Most of the state UI trust funds are still in bad shape, and—according to the White House—only 20 states have sufficient reserves to weather a single year of recession. As of January 13, 2016, California still owes $6.5 billion to the Federal Unemployment Account, Ohio owes $773 million, and Connecticut owes $100 million.
The Supreme Court heard oral arguments yesterday in Friedrichs v. California Teachers Association, a case that could profoundly affect the economy and the ability of millions of workers to improve their wages and working conditions. Friedrichs challenges the right of a majority of workers, through their democratically elected union, to bargain a contract with their public employer that makes every employee covered by the contract pay her fair share of the costs of negotiating it, administering it, and enforcing it in the courts or in arbitration. By preventing “free riders,” fair share clauses help ensure the viability of the union and the collective bargaining relationship.
What the fair share requirements (also known as “agency shop” provisions) don’t do is equally important to understand. They don’t require anyone to join the union—the law has been clear for decades that no one can be forced to join a union. And fair share provisions don’t require anyone to contribute to union political activity or advocacy on issues unrelated to collective bargaining.
Nevertheless, anti-union groups and the complaining teachers claim that it is unconstitutional for a public employer such as a state or county to make unwilling employees pay their fair share of bargaining costs. They claim a First Amendment right to accept the higher wages and benefits that come with the union contract without having to pay anything to support the union that won that contract. Alarmingly, a majority of the Supreme Court justices appear to agree, even though it means overturning Supreme Court precedent that is less than 40 years old. That case, Abood v. Detroit Board of Education, held that the interests of the government in having a single, stable collective bargaining partner outweighed the right of dissenting employees not to associate with the union and help pay for bargaining and administering the employment contract:
“The governmental interests advanced by the agency-shop provision in the Michigan statute are much the same as those promoted by similar provisions in federal labor law. The confusion and conflict that could arise if rival teachers’ unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer’s agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. See Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 178, 97 S.Ct. 421, 425, 50 L.Ed.2d 376 (Brennan, J., concurring in judgment). The desirability of labor peace is no less important in the public sector, nor is the risk of “free riders” any smaller.”
National Association of Manufacturers’ criticisms of the Obama overtime proposal all miss their mark
Last September, the National Association of Manufacturers (NAM) filed comments in opposition to the Labor Department’s proposed rule on overtime pay for salaried workers, which would raise the salary threshold under which all workers are eligible for overtime pay from $23,660 to $50,440. NAM’s chief criticism boils down to this: “The Labor Department set the salary level threshold for exemption too high.” The evidence NAM presents to support that criticism, however, is inaccurate, irrelevant, or contradicts its claims.
First, NAM claims, “The proposed salary threshold is grossly out of step with nearly 80 years of historical practice and precedent.” The evidence is a chart that purportedly shows the historic levels after each past increase, adjusted for inflation. But the chart is misleading. It cherry picks the lowest of the several potential levels set in the past, instead of the level that corresponds to the current duties test. When the correct levels are compared, DOL’s proposed $50,440 salary threshold is lower than the levels set in the Truman, Eisenhower, Nixon, and Ford administrations. As Tammy McCutchen testified in Congress on behalf of the U.S. Chamber of Commerce, the short test salary threshold varied between a low of $51,957.36 and a high of $63,741.60.
Even if you take NAM’s misleading chart at face value, it shows an increase in the threshold of 22% in the ten years from 1949 to 1959, or 2.2% per year. If the same rate of increase were applied to the 1975 threshold of $35,625, the 2015 threshold would be almost 90% higher, or about $67,000. NAM should be grateful that the Labor Department chose such a modest level.