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.
Senator Barbara Mikulski wants the public to believe that replacing U.S. workers with lower-paid foreign guestworkers is somehow good for us and good for the economy. That’s nonsense. The economy needs good-paying jobs for U.S. workers, not jobs that pay $5 an hour less and get filled by indentured workers recruited from foreign countries.
Sen. Mikulski claims that her efforts to gut the Department of Labor’s H-2B visa program regulations are all about trying to protect the Maryland seafood industry, which she claims is at risk because few Americans are willing to take oyster and crab-shucking jobs for minimum wage. What she doesn’t tell the public is that the H-2B visa program she’s expanding—while simultaneously gutting all of its rules—is used mostly to bring in landscape laborers and gardeners, not crab pickers. Her claim that bringing in one poorly paid gardener creates four jobs in the U.S. economy—a claim concocted by a conservative think tank—is utter baloney. You can find some economist somewhere who will defend almost any claim, but that particular claim is indefensible. Bringing in landscape laborers on H-2B visas who are indentured to their employers and can’t bargain for better wages and working conditions lowers wages for Americans who would otherwise get those jobs, and it leaves more money in the employer’s pocket, but it doesn’t create additional jobs. As EPI has shown, there are no labor shortages in landscaping or other H-2B occupations, but employers want H-2B workers instead of Americans because they can control them and keep them in shocking conditions.
H-2B visas are also used to bring in indentured construction laborers at wages far below prevailing wages. Ask a construction worker in Baltimore what he thinks about seeing what used to be decent-paying construction jobs go to people from thousands of miles away when thousands of Maryland construction workers are still unemployed.
If Sen. Mikulski weren’t so concerned about the corporations itching to bring in another 200,000 guestworkers, she could guarantee an adequate supply of seafood workers by restricting the 66,000 H-2B visas already available to jobs where a real labor shortage has been found—where employers offer higher wages and still can’t find qualified workers—rather than supporting an amendment that drastically cuts wages and labor protections and opening the gates for a race to the bottom.
The Obama administration deserves the nation’s thanks for standing up to the financial industry and its army of lobbyists on a matter of principle as well as practical importance: holding financial advisers accountable to their clients. Secretary of Labor Tom Perez refused to back down from a rule he proposed that would require financial advisers to act in the best interests of their clients. The rule simply requires advisors to provide what most clients probably already think they are receiving: advice about their retirement plans untainted by conflicts of interest. It would prohibit common practices such as steering investments to companies that pay the adviser a commission.
This rule would seem to be a no-brainer, but the industry makes billions of dollars from conflicted advice, and it’s used to getting its way. So the outcome of its efforts to kill the fiduciary rule was uncertain until yesterday, when it was revealed that an amendment to block the fiduciary rule was left out of the House omnibus appropriations bill.
What if the next time you went for a medical checkup, you were accosted by a pharmaceutical rep waiting for her expense-account lunch with the doctor. But instead of saving her pitch for the doctor—a sleazy enough practice—the drug rep began telling everyone in the room that they should take an expensive drug that has no advantage over a generic version and is approved only for medical conditions no one there has.
Illegal? Yes. But imagine that this was actually legal and that President Obama, with the support of progressives in his party, had issued a proposed rule intended to curb such practices by requiring that anyone offering advice to patients in a doctor’s office have the patient’s best interest at heart.
Here’s what would happen: Republicans in Congress would start parroting industry talking points about this having a chilling effect on urgently-needed advice people are receiving for free and can’t afford to pay for. A substantial minority of congressional Democrats would claim to agree with the president in principle, but find one reason or another to delay the rule indefinitely with quibbles and questions. The industry lobby would continue to shower Republicans with campaign donations, while the hand-wringing Democrats would avoid being singled out by the industry in their quest for reelection. Pundits would treat it as a complicated issue where there is serious risk of unintended consequences, and Americans would continue to be suckered into paying exorbitant prices for risky products they shouldn’t be buying in the first place.
The National Association of Homebuilders (NAHB), both in congressional testimony and in the official comments it submitted to the Department of Labor, makes a strong case for the Obama administration’s proposed rule on the overtime rights of salaried workers. Yes, you read that right: NAHB makes an ironclad case that businesses will have little difficulty adjusting to the proposed rule change.
Naturally, NAHB, which claims to represent 140,000 members involved in “home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing and other aspects of residential and light commercial construction,” testified before Congress that the DOL proposal would be the end of Western Civilization. But the data they presented tell a different story.
NAHB’s own survey of its members found that two-thirds would make no changes in their policies or operations. Many, of course, already pay their supervisors more than $50,440 a year and would be unaffected. Of the one-third that would make adjustments, most would do exactly what the rule contemplates: they would reduce the amount of overtime their supervisors work. Twice as many firms would raise the salary of their supervisors above the $50,440 threshold as would reduce their salary. And only 13 percent of the firms that said they would make a change would switch their supervisors from salary to hourly wage. In other words, just 4 percent of home builders would convert their salaried supervisors to hourly pay.
It is noteworthy that of the four top responses among the home builders who say they will make changes, two are undeniably positive—raising salaries and reducing overtime hours worked. Apparently, Ed Brady, the NAHB official who testified in the Small Business committee, is one of the few home builders in America who would contemplate outsourcing the role of construction supervisor in order to avoid paying overtime. Any contractor who employed that supervisor would have to deal with the same issues as Mr. Brady, and would charge for the costs they entail, plus a profit— so perhaps it’s not surprising that Mr. Brady is alone in planning to outsource his supervisors.
Clearly, the NAHB’s own evidence shows that DOL’s proposed changes in the overtime rules will have small, mostly positive effects on the homebuilding industry and its employees.
The New York Times has published two parts of a three-part series about the epidemic of arbitration clauses that have cropped up in millions of transactions between corporations and their customers and employees. The clauses are routinely included in employment contracts, cell-phone contracts, consumer product purchase agreements, cable subscriptions, rental agreements, and a multitude of financial transactions, as a way to prevent injured parties from having their day in court. Giving up the constitutionally protected right to sue in state or federal court is a big deal and is often the result of ignorance and deceit: millions of people have no idea the clauses are there in the fine print of contract provisions written in legalese that few individuals ever read or comprehend. They don’t find out they’ve lost their rights until they need them.
Individuals give up not just their right to go to court but all protections regarding the venue of any hearing their claim will receive (for example, the agreement might require arbitration in a city a thousand miles away). They might give up certain remedies and the right to appeal even if the arbitrator gets the law completely wrong, and give up the essential right to join with other victims to file a class action, especially important when each claim is small and no single individual could rationally pay to hire a lawyer and bring a lawsuit for such a small sum.
This will be the first in a series of blog posts examining some of the comments submitted to the U.S. Department of Labor (DOL) in response to its notice of proposed rulemaking (NPRM) on overtime pay for salaried employees. Approximately 300,000 comments have been acknowledged by DOL; I want to call attention to a few of the most salient comments, both pro and con.
I’ll start with the Human Resources Policy Association (HRPA), which claims to represent “the most senior human resource executives in more than 360 of the largest companies in the United States.” HRPA’s comment addresses both what DOL actually proposed as well as ideas it was merely considering. Three of HRPA’s criticisms are worth considering, though each is deeply flawed:
- The proposed salary level is too high because it “would effectively nullify the statutory exemption for a significant number of employees Congress meant to exempt.”
- The proposed rule would limit “workplace flexibility.”
- The rule should not index the salary level test.
The salary level proposed by DOL is modest and meets the congressional intent
HRPA’s argument that the salary level is too high begins with a misstatement of the role of the salary level test. It very clearly is not intended to set a “level at which the employees below it clearly would not meet any [executive, administrative, or professional (EAP)] duties test.” The salary level test would be redundant if the employees covered by it clearly would not meet any EAP duties test. In fact, DOL has long expressed the exact opposite intent. In the words of DOL’s 1949 report and recommendations, “the salary level must be high enough to include only those persons about whose exemption there is normally no question” (Weiss, 23).
The White House sent a Labor Day message from Director of the Office of Management and Budget Shaun Donovan about the many important issues affecting working Americans that will be decided in the next month of congressional budget negotiations. The message is well worth reading.
Donovan describes what he calls a “double-pronged attack on the workers we are celebrating today.” This attack includes deep cuts at the Wage and Hour Division, which protects workers against wage theft by crooked employers, and which collected $250 million in back pay for workers last year. Republicans also want limits on the use of third-party experts to accompany OSHA compliance officers on workplace safety inspections, where they can point out hazards OSHA might miss. They want to cut the budget and limit enforcement of the National Labor Relations Board’s rules to protect workers who join together for better working conditions. They want to block a new OSHA rule that will save thousands of workers from death, disabling lung disease, or cancer from inhaling silica dust. And they are trying to kill a new effort by the Department of Labor to protect retirees from financial advisors who put their own interests ahead of their clients’ interests.
None of the laws protecting working Americans from wage theft, on-the-job injury, unlawful retaliation, or self-dealing by financial advisors is meaningful if the government doesn’t enforce them. That takes resources and staff—investigators and lawyers who can take on big corporations or reckless businesses. Yet congressional Republicans want to cut funding for enforcement of all these laws. At OSHA, for example, Republicans want a 10 percent cut—$57 million, even though OSHA’s inspectors already can’t get to even one percent of workplaces in a year, and negligent employers put workers in harm’s way every day and kill nearly 100 employees a week.
Last week’s decision by the National Labor Relations Board regarding Browning-Ferris Industries of California (BFI) is a big victory for working people and labor advocates. By holding that BFI is a joint employer with the staffing agency that provides all but a few of the workers at one of BFI’s recycling centers, the decision closes one of the many loopholes corporations use to avoid paying decent wages, Social Security and Medicare taxes, worker’s compensation premiums and unemployment insurance taxes, and to avoid even providing a safe workplace.
Millions of people work for employers that want their time, their sweat, and their creativity —but don’t want to treat them as employees. The companies have put middle-men between themselves and their workers and—– thanks to Reagan-era legal changes—have avoided their responsibilities, including the duty to recognize and bargain with employee unions. Now, after 30 years of watching corporations evade these obligations with the government’s blessing, the key labor agencies of the federal government are saying, “enough is enough.” The NLRB is following the lead of David Weil, the Department of Labor’s Wage and Hour Division administrator, who has begun cracking down on phony independent contractor arrangements.
This victory, like most labor victories these days, is bittersweet. On the one hand, whenever a government agency protects or expands the rights of workers to organize and bargain collectively, or holds a corporation accountable for its treatment of workers, it is a cause for celebration. On the other hand, all the BFI decision does is restore the law regarding joint employers to where it was until 1984. Things weren’t going all that well for the labor movement even before the Reagan era, and the BFI joint employer doctrine won’t level the playing field between workers and corporations. It just turns back the clock to a fairer set of rules.
After the Department of Labor (DOL) issued regulations last year requiring third-party providers of home care services to pay the minimum wage and overtime to their employees, various employer groups filed suit in federal court in an attempt to have the new rules struck down. In short, they argued that the Secretary of Labor didn’t have the legal authority under the Fair Labor Standards Act (FLSA) to change the definition of “companionship services” it had used in the regulations it promulgated in 1975 to set wage and hour rules for home care workers. The U.S. District Court judge who heard the case, Richard Leon, didn’t just agree with the employers, he wrote a vituperative opinion expressing his outrage that the Department of Labor was arrogantly usurping congressional powers.
Calling on his inner George W. Bush, the judge declared that the Department of Labor was trying to “seize unprecedented authority to impose overtime and minimum wage obligations in defiance of the plain language of Section 213. It cannot stand.”
Last week, in Home Care Association v. Weil, a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit disagreed with Judge Leon about the “plain language” of the statute and overruled him, finding that “the Department’s authority [to change its regulations] is clear.” The appeals court pointed out that the Supreme Court had already decided that Section 213 of the Fair Labor Standards Act doesn’t unambiguously compel any conclusion about whether third-party providers of home care services are exempt from the overtime and minimum wage requirements. Judge Leon forgot that the issue was so far from plain that back in 1975 that DOL considered covering third-party employers, before choosing not to. (How he forgot, since he cited DOL’s hesitation himself, is another story.)
In 2014, President Obama directed the Department of Labor to update the threshold under which all workers are eligible for overtime pay. Today, the Department of Labor announced that it will raise the overtime salary threshold from $23,660 to $50,440 by 2016. The threshold will also be indexed, guaranteeing that the law’s important protections will not be diminished by inflation.
We applaud President Obama and Secretary Perez for this bold action. The new threshold will protect more workers from being taken advantage of by their employers, giving some higher pay for working overtime and others reduced hours without any reduction in pay. This is a significant victory for American workers and will ensure that they get paid for the work they do.
More from EPI on Overtime:
This higher threshold will guarantee 15 million more workers overtime pay on the basis of their salary alone, in addition to the 3.4 million workers who are already guaranteed overtime pay. It will boost wages, which have been largely stagnant for the past 35 years, create hundreds of thousands of jobs, and give more family time to millions of working parents. Overall, 3.1 million mothers and 3.2 million fathers will be guaranteed overtime pay under the new threshold, and 12.1 million children will benefit from their parents’ overtime coverage.
In 1975, the overtime salary threshold covered about 62 percent of all salaried workers–today, it only protects 8 percent. Had overtime kept pace with the 1975 level, it would be about $52,000 today adjusted for inflation, about equal to the U.S. median household income. The new salary threshold puts us back on track to reconnect workers’ wages with gains in productivity.
With today’s announcement, the DOL is opening a comment period that will give workers an opportunity to express their support of the proposed rule change. FixOvertime.org allows workers to use their voice and submit their comment for consideration as the Department of Labor decides whether or not to actually boost overtime in accordance with the proposed rule changes. It also lets workers calculate how much extra they can earn per week under the new overtime rules.
If salaried employees are paid less than the overtime salary threshold (currently $23,660 in annual salary), they are entitled to overtime pay when they work more than 40 hours in a week. If however, they make more than the salary threshold, they are entitled to overtime pay only if their primary duty is not executive, administrative, or professional.
In a 2014 analysis, former EPI economist Heidi Shierholz estimated the share of salaried workers who were covered by the overtime salary threshold in 1975 and in 2013. She found that, despite an increase in the threshold in 2004, the share of the workforce covered by the threshold declined from 65 percent in 1975 to just 11 percent in 2013. This is because most of the value of the threshold was eliminated between 1975 and today due to inflation. As a result of Shierholz’s findings, EPI recommended that the overtime salary threshold be increased to the 1975 threshold in today’s dollars (in 2013, this was $51,168), which would have covered 47 percent of the workforce.
Because the analysis focused solely on the salary threshold test–i.e., because the analysis focused on just the salary of workers without regard for the duties of their occupation–increasing the threshold to reflect an amount into today’s dollars wouldn’t mean that all of the workers who fell in between $23,660 and $51,168 would gain overtime protections. Many of these workers would already have been entitled to this protection because their primary job duty was not executive, administrative, or professional.
Now, in updating this analysis, we want to be as precise as possible in identifying the workers who will be affected by the updated salary threshold rule. To do this, we narrowed the sample to those workers who are full-time workers (usually work 35 hours or more at their primary job), expanded the age of the population to all workers 18 years or older (previously limited to those 18-64), and removed certain occupations that are automatically exempt from overtime protections (e.g., medical professionals, lawyers, judges, teachers of all levels, and religious workers).
The National Retail Federation (NRF), a lobbying organization for department store corporations, sporting goods and grocery chains, and other large retailers, is opposed to the Department of Labor’s update of the rules governing the right of salaried workers to overtime pay. The reasons the NRF gives are somewhat contradictory and are sometimes surprising. But they boil down to this: the retail lobby doesn’t think businesses should have to pay for the overtime hours most of their employees work.
In March 2014, President Obama directed the Secretary of Labor to update the rules intended to exclude high-level employees like executives and professionals from overtime protections. The rules are currently so out of date that they define even workers earning below-poverty salaries as exempt, even though the pay of true executives and professionals like lawyers and CPAs has been soaring for decades. To fix this problem, the Labor Department is reportedly considering raising the threshold for exemption from $23,660 a year to $42,000 or more. Some advocates are calling for a threshold as high as $70,000 a year, which would protect the same share of the salaried workforce as was covered in 1975.
If the threshold is raised to $42,000, the NRF predicts significant changes in retail employment: while some employers will raise salaries for employees near the threshold to guarantee that they continue to be excluded from overtime protection, many salaried employees (some of whom work 60-70 hours a week for no extra pay) will have their hours reduced and as a result, 76,000 new jobs will be created averaging 30 hours per week. Altogether, half of the retail workforce that is currently excluded from coverage will be guaranteed coverage by the law’s overtime protections. That all sounds pretty good to me.
The common wisdom on Capitol Hill, carefully nurtured by corporate lobbyists and campaign cash, is that America needs more high-tech guestworkers, requiring a big increase in the number of H-1B guestworker visas made available each year. A number of senators, including Amy Klobuchar and Orrin Hatch, have introduced legislation to double or triple the number of non-immigrant tech workers who can be imported each year, despite evidence from the U.S. Government Accountability Office, independent researchers, and various media reports that the H-1B is used to lower wages and displace U.S. workers.
The senators endlessly proclaim that H-1B employees are good for our economy, that businesses can’t find enough talent here, that the H-1Bs are innovative, the “best and the brightest,” and that importing them leads to more job creation. In support, they cite a paper by Agnes Scott College researcher Madeline Zavodny, which found that hiring H-1Bs creates jobs for Americans: specifically, that “adding 100 H-1B workers results in an additional 183 jobs among U.S. natives.”
The problem is that it isn’t true. Zavodny’s research couldn’t discern whether the H-1Bs were hired because the economy was growing and jobs were being created—for natives and guestworkers alike—or whether the H-1Bs were responsible for the job growth. (The weakness of her results is demonstrated by another, completely implausible finding she reports, that H-2B unskilled guestworkers are associated with two-and-a-half times greater job creation than the college-educated H-1Bs: 464 jobs for every 100 H-2B guestworkers. The notion that hiring low-wage-earning landscapers and groundskeepers, hotel maids and dishwashers—most of whom have little or no college education—spurs spectacular job growth is ludicrous on its face.)
While policy makers in Washington are at least paying lip service to the need to lift the stagnant wages of America’s middle class, politicians in state capitals across the country are cutting the wages and benefits of public employees and school teachers, passing so-called “right-to-work” laws to weaken unions, and cutting back on unemployment insurance with the aim of forcing jobless workers to take any job, no matter how poor.
Indiana is a leader in this sorry parade. It passed right-to-work two years ago, and now the legislature has repealed (with the support of a governor with aspirations for national office) the state’s eight-decade old prevailing-wage law, which required contractors on state-funded construction projects to pay their construction workers the average wage in the locality where the work is done. Like the federal Davis-Bacon Act, the rationale for the law was straightforward: The state government should not be in the business of driving down wages. When it pays for construction work, rather than forcing a race to the bottom, it should respect local area standards.
But powerful interests, from the Koch Brothers and the American Legislative Exchange Council to the Associated Builders and Contractors, like the idea of a race to the bottom. From their perspective, the best wage is the lowest wage they can get away with, since companies’ profit margins will be higher with every dollar that isn’t paid to a construction worker. Indiana politicians are dancing to the tune the Kochs are calling.
After more than five years of litigation in numerous jurisdictions by immigrant and worker advocates who challenged the Bush administration’s illegally promulgated regulations for the H-2B temporary foreign worker program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) have jointly promulgated two new rules—the H-2B “Comprehensive Interim Final Rule” and the “Wage Methodology Final Rule”—which establish important but modest protections for low-wage U.S. workers and guestworkers.
The H-2B temporary foreign worker program—which has been only minimally regulated since 2008—has facilitated the exploitation and human trafficking of guestworkers who work for U.S. employers in various industries, including landscaping, hospitality, forestry, seafood, fairs and carnivals, and construction. A judgment of $14 million in damages was recently awarded to five Indian H-2B guestworkers by a federal jury in Louisiana; the case is just one example of the many abuses that have been inflicted upon H-2B workers over the years.
EPI applauds the new worker protections provided by the H-2B Comprehensive Interim Final Rule, which goes into effect immediately but will be finalized after a 60-day comment period. This rule was originally proposed and finalized in 2012, after notice to the public and the collection and analysis of comments, but was postponed by congressional appropriations riders and enjoined by federal courts at the request of employer associations. While the rules impose some new duties on H-2B employers, the burdens are minimal and justified. The rules will result in more U.S. workers being hired for open positions and prevent the exploitation of H-2B workers. We echo the sentiment of 10 senators who asked DHS and DOL to “mirror the 2012 rule as much as possible” when the rule is finalized after 60 days.
The new protections for H-2B guestworkers include: the right to a copy of their work contract in a language they can understand; a guarantee that they will be paid for at least three-quarters of the hours promised in their work contracts; and reimbursement for inbound travel expenses after a worker completes 50 percent of the employment contract, and employer-paid outbound transportation if the worker remains employed until the end of the job order or if the worker is dismissed before the end of the job order.
In 1993, it seemed obvious to me that NAFTA was about one main thing: providing a huge new (and much cheaper) labor force to U.S. manufacturers by making it safe for them to build factories in Mexico without fear of expropriation or profit-limiting regulation. But the Clinton administration claimed it would open a new market to U.S. business, and U.S. Trade Representative Mickey Kantor, President Clinton, and even Labor Secretary Bob Reich argued that it would create jobs for American workers and even increase job creation in the U.S. auto and steel industries. They said NAFTA would benefit Mexican workers and help create a bigger Mexican middle class, while deterring migrant workers from crossing the border to seek jobs in the United States with better wages. They also argued an alternative theory: that NAFTA would help keep U.S. manufacturers from moving to Southeast Asia, and that it was better to keep that off-shored work in our hemisphere and along our border.
What actually happened?
- The trade balance with Mexico went from positive to very negative, resulting in the loss of more than 600,000 jobs in the United States.
- Mexico’s corn farmers were overwhelmed by a flood of cheaper U.S. corn and almost 2 million agricultural workers were displaced. Most of them migrated illegally to the United States and remain here as exploited, undocumented workers.
- Wages fell for Mexican industrial workers, to the point that autoworkers in Mexico now make less than Chinese autoworkers. Some Japanese carmakers start paying Mexican workers at 90 to 150 pesos per day, or $6 to $10.
- U.S. auto companies shifted investment to Mexico to exploit its much cheaper labor. AP reports that “Mexican auto production more than doubled in the past 10 years. The consulting firm IHS Automotive expects it to rise another 50 percent to just under 5 million by 2022. U.S. production is expected to increase only 3 percent, to 12.2 million vehicles, in the next 7 years.” Since NAFTA’s enactment, employment in the U.S. motor vehicle and parts industry has declined by more than 200,000 jobs.
More recent claims about the expected benefits of free trade agreement with Korea have proven hollow, too. Instead of creating 70,000 jobs, the net effect has been a higher trade deficit and the loss of 60,000 jobs. Worse, the harshest impact of that deal won’t be felt for several more years, when protective tariffs on pickup trucks are eliminated, making Korean imports 25 percent cheaper than they are today. U.S. auto workers will be hard hit.
And then there’s Permanent Normal Trade Relations with China and China’s admission to the WTO, which led to an explosion of imports and the loss of more than 3 million jobs, mostly in manufacturing and mostly in occupations that paid more than the jobs created in exports industries.
One bad experience after another: that’s why so many are so opposed to fast track and more NAFTA-style free trade deals.
Here are a few recent reports about the grim toll of industrial fatalities and the hazards workers are exposed to every day, from the Cal-OSHA Reporter and other sources. Hopefully, they will remind you why we need a strong federal enforcement effort and much better programs of workers compensation for occupational injuries and illnesses. A recent NPR/ProPublica report was a wake-up call about how state legislatures are gutting the programs that compensate employees for lost limbs, lost eyes and damaged hearing, compensate them for lost wages, and pay for the medical care of injured workers.
Bumble Bee Foods facing criminal charges over worker death: “Los Angeles County District Attorney Jackie Lacey on April 27 announced that Bumble Bee Foods LLC and two others are facing criminal charges related to willfully violating worker safety rules and causing the 2012 death of an employee who became trapped inside an industrial oven at the company’s Santa Fe Springs plant.”
OSHA: York workers exposed to asbestos: “A York County company is facing a nearly half-million-dollar fine for allegedly failing to protect employees from asbestos. The York City-based First Capital Insulation Inc. allowed workers to remove asbestos improperly, failed to make sure employees’ respirators fit correctly and did not decontaminate employees and their clothing before they left a work site, the Occupational Safety and Health Administration stated in a news release this week.”
Police: Man dies in Oklahoma City industrial accident: “Oklahoma City police say a worker has died at an area commercial printing business after being trapped under a piece of machinery.”
Worker killed in cinder block wall collapse, Ramsey police say: “A 56-year-old construction worker was killed in a wall collapse at a Ramsey, New Jersey building on Wednesday, officials said.”
It’s a scary thing when powerful government officials misuse their power, and especially when they misuse it to afflict the needy and comfort the comfortable. This appears to be what’s happening now as the chairmen of the two congressional tax-writing committees seek to change the tax status of various worker centers that have annoyed politically active corporations like Walmart, Darden Restaurants, and McDonalds.
I am not a tax lawyer and can’t say with any certainty whether a worker center formed to provide services such as job training, education, and legal assistance to low wage workers should suddenly be transformed from a 501(c)(3) charity into a labor organization if it challenges wage theft or other labor problems caused by a store or corporation. I don’t think the law should operate that way, but the law has a lot of problems.
What I can say is that it’s a shame that Sen. Orrin Hatch and Rep. Paul Ryan are spending their time on a matter of importance only to huge corporations that need no help from Congress in crushing worker organizations, fighting wage increases, and profiting immensely from weak labor standards and high unemployment. As their letter to IRS Commissioner John Koskinen shows, Ryan and Hatch don’t like the fact that worker centers have exercised their constitutionally protected right to “protest and picket against targeted businesses.”
One of the protests the congressmen cited was a Restaurant Opportunity Center protest over the takeover of Olive Garden restaurants by a hedge fund, Starboard, that wanted to cut labor costs by $48 million and transfer the savings to the pockets of investors. The workers and the worker center weren’t asking for the right to be the exclusive bargaining representative: they just didn’t want their wages cut and didn’t want to be changed from waged employees to tipped employees. But Ryan and Hatch want the IRS to investigate the workers.