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Could This be the Dawn of a New Labor Movement?

Traditional Work Stoppages on the Rise

Is it possible we are seeing the traditional labor movement evolving into something new? Signs seem to to be pointing that way. Could this be the dawn of a New Labor Movement?

The number of U.S. workers involved in work stoppages, which includes strikes and lockouts, was the highest of any year since 1986, according to Bureau of Labor Statistics data released earlier this year. For workers fighting with their employers over economics and contract language, striking is often the last option available and is not to be taken lightly due to the loss of wages and other financial hardships. Workers can also be replaced in some circumstances.

The impact on employers can be significant as well. The Stop & Shop strike earlier this year cost the company about $100 million.

Employers and employees who operate in a unionized environment understand that a work stoppage could occur during collective bargaining, and prepare for such events.

The same is not true for employers who are union-free, even in an era when employees of non-union companies are more prone to speak out publicly against employer policies, as reported by USA Today.

“Not happy with the leadership at your company?

You may not have to keep your mouth shut anymore. Gone are the days when speaking up got you automatically fired.

Employees, especially millennials, feel increasingly emboldened to publicly criticize their employers, organize protests and pursue change at the top on issues such as gender equality and immigration.

Among the latest examples: home goods seller Wayfair, and technology companies Google and Amazon.”

Work Stoppages as a Means of Workplace Activism

Hundreds of employees at the online furniture company Wayfair walked off their jobs Wednesday to protest the company’s decision to supply furniture to migrant detention centers. The walkout was the culmination of a week of back and forth between some employees and the company leadership.

The employees, organized under a newly formed group called Wayfair Walkout according to USA Today, drew widespread support on the internet from prominent politicians such as presidential candidate Sen. Elizabeth Warren, D-Mass., and Rep. Alexandria Ocasio-Cortez, D-N.Y., and from many Wayfair customers, who took to social media to swear off shopping at the furniture giant until the company rectified what they see as aiding a grave injustice. Locals unaffiliated with Wayfair also joined the walkout to show their support for the protesting employees.

At Amazon, some 8,000 employees concerned about climate change have signed onto Amazon Employees for Climate Justice. The worker group won the support of two independent shareholder advisory services for a proposal pressing Amazon to account for its emissions and has continued to advocate for action since the company and investors rejected the resolution in May.

About 100 Google employees urged the organizer of this weekend’s San Francisco Pride parade to kick the company out of the celebration, escalating pressure on the internet giant to overhaul its handling of hate speech online.

Google in turn warned workers not to protest against the company if they are marching with Google’s official contingent. Doing so would violate the company’s code of conduct, according to internal memos viewed by the people. The Verge reported the memos earlier.

The company’s actions may violate federal labor law protecting workplace activism, as well as a California law protecting employees’ political activities, according to University of California at Berkeley law professor Catherine Fisk. “Maintaining the policy would chill speech that is protected by law,” she said.

According to an article in the Wall Street Journal, boundaries are breaking down between political and business issues that employees, especially Millennials and younger employees want a hand in addressing. Referring to this developing trend as “The New Labor Movement”, the article points out how Employees, especially younger ones, increasingly expect the places where they work to reflect their moral, cultural and political values, and they are becoming more vocal in their demands—often using social media and online job-discussion forums—when they feel employers fall short.

The rise of websites and blogs where employees can share concerns about corporate policy has given added momentum to some organized efforts.

The concurrent rise of employee activism and growing use of communications technology in the workplace is no accident, according to Mark Kramer, a Harvard Business School lecturer and co-founder of FSG, a consultancy that advises companies on their social-impact strategy. “Social media enables employees to communicate without going through official channels, which didn’t happen before to the same degree,” says Mr. Kramer.

Experiencing this type of activity creates a difficult situation for employers, raising many questions.

Who responds to these types of internal protests?

Does the activity constitute protected concerted activity?

What is the potential PR fallout?

It’s clear that even as traditional labor activity remains somewhat slow, there are many challenges for internal labor relations practitioners to deal with. Are you prepared for an internally driven protest? You might sleep better at night when you can answer these questions. That’s all for this week. Let me know what you think. 

Using NAFTA 2.0 to boost wages in Mexico could be a ‘deal-breaker,’

Using NAFTA 2.0 to boost wages in Mexico could be a ‘deal-breaker,’ ex-Mexican officials warn

From Politico Pro By Megan Cassella

A push to increase wages and tighten labor standards in Mexico — one of the Trump administration’s top priorities in a modernized NAFTA — is likely to be a no-go issue for the Mexican government that has the potential to scuttle the renegotiation, two former Mexican negotiators warned on Tuesday.

“Wages, I think, should be out of any kind of discussions and should be a red line and a deal-breaker,” Francisco de Rosenzweig, a former deputy trade minister for Mexico who led the country’s negotiating team for the Trans-Pacific Partnership, said at an event in Washington hosted by the Wilson Center. The issue, he added, “should not be considered even as a possibility to negotiate.”

Mexico has instituted several labor reforms and improved its legal framework on labor issues since NAFTA was first negotiated, Rosenzweig said, adding that additional changes that Mexican President Enrique Pena Nieto submitted recently are still “on the way.” He described current labor provisions that were written in side agreements as positive developments, and said Mexico would be comfortable moving those provisions into the main text of an updated NAFTA agreement, as the U.S. wants. But going beyond that and tightening those standards would prove more difficult and could endanger the talks, he said.

“We don’t know what other provisions the U.S. may want to submit to Canada and Mexico, so we will take a look,” said Rosenzweig, who is now a partner in the Mexico City branch of the law firm White & Case. “But in the end, it’s about reaching balances,” he said. “It’s not only about the U.S. Congress. It’s about the Mexican [Senate] and the Canadian Parliament, too.”

The United States, in its detailed negotiating objectives, listed bringing those labor provisions into NAFTA’s core text as its top labor-related priority. But it also outlined nine other labor initiatives, including requiring countries to establish rules to enforce labor laws surrounding working conditions and minimum wages. The Trump administration also wants to ensure that NAFTA countries’ labor standards do not affect trade or investment between the parties.

Top U.S. officials have reinforced the point that labor standards in Mexico will be a primary topic of discussion throughout the talks, slated to begin on Wednesday. Back in June, U.S. Trade Representative Robert Lighthizer told members of the Senate Finance Committee that with regard to labor standards, “certainly they will be one of the very first things that we talk to them about.”

In an example of a potential negotiating point where labor standards would figure prominently, POLITICO reported earlier Tuesday that U.S. negotiators would submit a proposal during the first round of talks to make it easier for U.S. produce farmers by region to protest allegations of dumping on Mexico’s part. Many U.S. produce growers complain that the substantially lower labor costs in Mexico help its produce exports undercut the price of produce grown in the U.S.

While it is not known how the Trump administration may propose to achieve its priorities on labor during the talks, the concern is that “apparently Mexico is like the bad guy in the arena because we have lower labor costs,” said Luz Maria De La Mora Sanchez, a former official at Mexico’s Foreign Affairs Ministry who was part of the original team that negotiated NAFTA in the early 1990s.

“Wages in Mexico are lower than in the U.S. That’s a fact,” she said at the Wilson Center event. “The fact that that exists doesn’t mean we have an overt trade advantage.”

Mexico has to work hard to close that gap, she said, but doing so will require education, innovation, improvements in productivity — and not new trade agreements.

“My concern with respect to labor is that the U.S. comes up with a proposal that really tries to intervene in minimum wages and labor markets, which cannot be solved through a trade negotiation,” she said. “We have to be very careful on not offering solutions that may end up not getting us anywhere.”

Trump Labor Policy Reforms Begin To Take Shape

Trump Labor Policy Reforms Begin To Take Shape

This past week was the one where the expected Trump labor reforms finally started to become tangible. On June 7, the Department of Labor announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.  Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.  While this pullback on joint employer guidance is good news, it does not reverse the NLRB’s ruling in the Browning-Ferris case.

Secretary of Labor Acosta also announced that fter a thorough review of the U.S. Department of Labor’s foreign worker visa programs, DOL would undertake actions to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.

“Entities who engage in visa program fraud and abuse are breaking our laws and are harming American workers, negatively affecting Americans’ ability to provide for themselves and their families. We will enforce vigorously those laws, including heightened use of criminal referrals,” said Secretary Acosta. “The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

Congress also got into the act Representatives Phil Roe (R-Tenn.) and Peter Roskam (R-Ill.) introduced legislation today to repeal the Obama administration’s fiduciary rule.

The rule requires broker dealers to consider only their client’s best interest — and not fees or commissions — when providing retirement advice. Although part of the regulation will take effect Friday, the Labor Department sent a request for information about the rule earlier this week.

Acosta also looked to be preparing to begin the process of changing the policy on Overtime issued by the Obama administration, and is currently injuncted.

At a hearing,  Acosta stated that the Department plans to file a request for information (RFI) “probably in the next two to three weeks” in which it will seek information in connection with the overtime rule and its salary level. Secretary Acosta noted that it is a “problem” when the dollar amount of the salary level is not updated “because life gets a lot more expensive.” He also testified that the manner in which the final salary level of $47,476 per year “was done created a shock to the system.”

In a note from the Chamber of Commerce provided by LLAC member Clyde Jacobs, In other Wage and Hour Division news, we learned that Cheryl Stanton is the leading candidate to be nominated for the position of Wage and Hour Administrator.  Stanton is currently executive director of the South Carolina Department of Employment and Workforce, and previously served in the George W. Bush White House, the National Labor Relations Board, and the Equal Employment Opportunity Commission.  She has also been a shareholder for Ogletree Deakins.

There also news on many other fronts, including a decision from the 6th Circuit Court over whether the NLRA allows employers to require employees give up their rights to litigate or arbitrate class action suits, more labor law reform initiatives from the Republicans, concerns from both business and labor regarding the proposed EEOC/OFCCP merger, and proposals from Presiedent Trump to boost infrastructure spending in some unexpected ways  and increase job training efforts for workers despite reducing the funding for such efforts in the 2018 proposed budget.

This trend of providing both a carrot and a stick to labor unions and the American worker continued in Cincinnati when President Donald Trump reiterated his commitment to the American worker during an infrastructure speech in Cincinnati, Ohio Wednesday, as reported by the Daily Caller.

“As long as I am president, America’s labor leaders will always find an open door at the White House,” the president said to chorus of applause during his speech along the banks of the Ohio River.

“It’s time to recapture our legacy as a nation of builders and to create new lanes of travel and discovery and we’re going to see all the way into the future,” Trump said. “And the future is going to be bright.”

The president acknowledged three labor leaders present at his speech in Cincinnati, including Sean McGarvey, president of North America’s Building Trades Unions (NABTU), Eric Dean, president of the United Iron Workers and Terry O’Sullivan, president of the Laborers’ International Union of North America.

RESCINDING PERSUADER: The Labor Department is proposing to rescind the persuader rule, according to an unpublished notice in the Federal Register. The rule, which increased disclosure requirements for the hiring of union-busting consultants and attorneys, never took effect because a court issued a permanent injunction against it in November. The proposal will be published in the Federal Register June 12 and will be open to public comment for 60 days, according to Politico.

Today’s labor policy feels a little bit like the old “flying wedge” play from the early days of football when players played with no helmets and very little protective padding.

Interesting times ahead, and plenty of interesting topics for the Fall 2017 Conference at the JW Marriott in Indianapolis. Registration for Indianapolis will open on Monday, June 19.