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How Beto O’Rourke would reform labor law in the United States

  • August 22, 2019

Former Rep. Beto O’Rourke on Thursday released a plan to strengthen unions and boost workers’ wages. 

What would the plan do?

O’Rourke’s proposal includes a grab bag of union protections currently under consideration by House Democrats. It would permit the National Labor Relations Board — the quasi-judicial agency charged with protecting workers’ union rights — to impose monetary fines on employers that terminate a worker wrongfully or that, in violating the National Labor Relations Act, cause a worker to suffer economic harm. Under current law, the NLRB may order reinstatement or collection of back pay, but it can’t impose fines.

The proposal, in supporting the Protecting the Right to Organize Act, H.R. 2474, would allow the NLRB to hold corporate directors and officers individually liable for any violations of which they had prior knowledge. O’Rourke’s plan would also make it easier for independent contractors to establish in court that they are misclassified as employees.

Further, O’Rourke’s plan seeks to create a European-style system of collective bargaining, where union leaders and managers would agree on minimum standards for an entire industry sector rather than negotiating separately with each individual company. For industries with little union presence, O’Rourke says he would establish so-called wage boards, with equal employer and employee representation, to bargain over industry-wide pay.

O’Rourke says he would preserve the Obama-era standard on joint employment, which made it easier for businesses — particularly large chains — to be held liable for labor violations committed by their franchisees and contractors. The Trump administration is in the process of writing a more business-friendly rule; O’Rourke says he would nominate NLRB members who would either protect the Obama-era standard or adopt a stronger one.

O’Rourke calls for a $15 minimum wage, including the elimination of lower wages for tipped workers and people with disabilities. He would also reinstate the Obama-era overtime rule, which raised to $47,476 the salary threshold under which virtually all workers are guaranteed time-and-a-half pay if they work more than 40 hours in a given week. The Trump administration is poised to issue a regulation setting the threshold below the Obama level, to $35,308.

In addition, O’Rourke would seek to adopt a stricter legal test making it harder for companies to classify workers as independent contractors. The change, already the subject of fierce debate in California, would give thousands of gig-economy workers the same legal protections as full-time employees, including the minimum wage and overtime.

O’Rourke also says he would sign a Democratic bill, H.R. 7 (116), to narrow the gender wage gap by preventing employers from basing pay on salary history and require employers to demonstrate that any pay disparity between a man and a woman was attributable to job performance rather than gender. In addition, he supports legislation to prevent LGBT discrimination in the workplace, H.R. 5 (116) , and giving the Equal Employment Opportunity Commission more authority and funding to go after bad actors.

O’Rourke says he would also ban agreements that require workers to waive their right to sue their employer, a prohibition that has grown in popularity in the wake of the #MeToo movement.

To boost vocational training, O’Rourke says he would make community college free and invest $90 billion over 10 years to create more registered apprenticeships that meet national standards for quality. In addition, he says he would triple the amount of funding for adult training programs to $2.4 billion a year.

O’Rourke does not specify how he would pay for these proposals. 

How would it work?

The vast majority of O’Rourke’s proposals would require approval from Congress, meaning that Democrats would have to win control of the House and Senate for them to become a reality. Many of the policies are based on existing legislation. 

What do other candidates support?

O’Rourke’s plan aligns with what other Democratic presidential candidates have already proposed. The most significant changes also have widespread support among House Democrats.

Sen. Bernie Sanders (I-Vt.) also supports European-style bargaining by industry sector. Sen. Kamala Harris (D-Calif.) in May released a detailed plan to close the gender wage gap. And Sen. Michael Bennet (D-Colo.) on Wednesday proposed $500 billion in new apprenticeship funding — more than five times the amount in O’Rourke’s plan.

Beware the PRO Act (or at least be aware)

  • August 22, 2019

Do you remember EFCA? Back in 2008, employers were freaking out over the Employee Free Choice Act which would have radically altered labor law in favor of unions. EFCA failed to pass in an evenly split Senate that year to the immense relief of the American business community.

Are you aware that right now there is a bill sitting in the House of Representatives that is essentially EFCA on steroids? If you didn’t know, don’t feel bad. With immigration and tariffs leading the news cycle, the Protecting the Right to Organize (PRO) Act has been flying under the radar since it was introduced in the House by Rep. Bobby Scott (D-VA.) and in the Senate by Sen. Patty Murray (D-WA) last May.

Protecting the Right to Organize Act (“PRO Act”) is designed to strengthen protections for employees engaged in collective action, to expand coverage of the NLRA to more employees, to facilitate a process by which workers and employers can reach a first collective bargaining agreement, to provide for stronger remedies for employees whose rights under the NLRA have been violated, to provide for penalties against employers who violate those rights, to safeguard the right to strike, to repeal prohibitions on collective action, to permit fair share fee arrangements, to improve the purchasing power of wage earners in industry, and to guarantee more effective enforcement of the NLRA.  You can review a complete section by section description of the PRO Act here

Here are some examples of how labor law provisions would be impacted under the PRO Act:

  1. Strong remedies and compensatory damages when an employer is found to have committed an Unfair Labor Practice.  
  2. More freedom to organize without employer interference
  3. Winning first contract agreements when workers organize
  4. End of Right to Work laws
  5. Protecting strikes and other protest activity
  6. Organizing and bargaining rights for more workers
  7. Codify into law the NLRB’s controversial Browning-Ferris Industries joint-employer standard 
  8. Curb opportunities for people to work independently through gig economy platforms or more traditional independent contractor roles

The PRO Act would completely rewrite labor law in the United States.  It’s not going anywhere in 2019, but if the Democrats can flip the Senate and the White House in the 2020 election, the PRO Act could become law within weeks during 2021.  THat’s why it’s important for you to familiarize yourself with the PRO Act now and start talking to your management team about it. Talk about it at your local SHRM chapter meetings, or in local business group meetings.  Here is a great resource for more information and facts on the PRO Act.

Bernie Sanders releases plan to revive labor unions

  • August 22, 2019

As Labor Day approaches, the drumbeat of plans to save the labor movement in the US is cranking up. As reported in the Detroit News, organized labor is a pillar of the Democratic Party, but many white working-class voters and union members in swing states backed Republican Donald Trump in 2016. Democrats are working to win back those voters in the next presidential election, but party leaders and union members are telling candidates that they need to talk about issues that matter to working families.

Bernie Sanders

Sen. Bernie Sanders (I-Vt.) released a plan Wednesday that would “at least double” union membership in the United States and “substantially raise wages” among middle-class workers. The announcement coincides with an AFL-CIO event for the Democratic presidential candidates in Iowa. 

What would the plan do?

Sanders’ plan rests on major changes to federal labor law, including the end of “at-will” employment, meaning that companies would be prohibited from firing workers without just cause.

Sanders seeks to create a European-style system of collective bargaining, where union leaders and managers would agree on minimum standards for an entire industry sector rather than negotiating separately with each individual company.

Sanders’ plan would repeal state right-to-work laws that prohibit mandatory union fees charged to non-members to cover their share of collective bargaining costs, and allow workers to form a union through “card check” — an informal process that avoids a secret-ballot election overseen by the National Labor Relations Board. Currently, card check is available if an employer agrees, but Sanders’ plan would make it the main tool for all union organizing.

The plan would codify an Obama-era standard on joint employment, which made it easier for businesses to be held liable for labor violations committed by their franchisees and contractors. The Trump administration is in the process of writing a more business-friendly rule.

Sanders would also give federal workers the same right to strike as private-sector workers, citingthe ill effects on federal workers from last winter’s 35-day partialgovernment shutdown. In addition, Sanders says he would sign legislation giving all public-sector workers the right to unionize, overruling state laws that limit public-sector unions.

Sanders says he would reinstate and expand the Obama administration’s so-called persuader rule, struck down by a federal judge in 2016, which required employers to disclose the hiring of outside consultants to counter union drives even when the consultants didn’t interact with workers (previously, consultants who interacted only with management were exempt). In addition, Sanders would make it illegal for companies to require workers to attend anti-union presentations as a condition of employment.

Sanders’ plan would also permit striking workers to conduct secondary boycotts and pickets that target companies that do business with their employer. The practice is prohibited by the 1947 Taft-Hartley amendments to the National Labor Relations Act, which also ended unencumbered card-check elections and authorized states to pass right-to-work laws.

Sanders also said he would treat domestic and farm employees the same as other workers, making them eligible for overtime pay and giving them the right unionize. 

How would it work?

Sanders’ plan would require sweeping changes to U.S. labor law — especially on sector-widebargaining — meaning Democrats would need to control both the House and Senate for the plan to have a chance. Even then, moderate Democrats might be nervous to enact such sweeping changes.

Sanders could accomplish smaller pieces of his plan independently through the NLRB and other agencies, including updating the Obama-era rule on anti-union presentations.

“What I believe is that we’re not going to grow the middle class of this country unless we revitalize the trade union movement and unless we provide the opportunity for millions of workers to do what they want, and that is to join trade unions,” Sanders told Bloomberg

What have other Democrats proposed?

As one would expect, some aspects of Sanders’ plan are slightly left of other candidates. Mayor Pete Buttigieg, for example, would require equal time for anti- and pro-union consultants in the workplace, but Buttigieg did not say he would ban anti-union presentations altogether. And while other candidates support ending right to work, they haven’t been as vocal about sector-wide bargaining.

Much of Sanders’ bill is based on legislation he introduced, S. 2810 (115), also sponsored by Sens. Elizabeth Warren (D-Mass), Kamala Harris (D-Calif.), Cory Booker (D-N.J.) and Kirsten Gillibrand (D-N.Y.).