The Trump Administration and U.S. Labor Laws

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Lawyer 2 Lawyer – Law News and Legal Topics

The Trump Administration and U.S. Labor Laws

03/03/2017

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Howard Wexler: I think it remains to be seen probably a hundred or so days from now once everyone is in place where it seems you can get going but there definitely will be some changes within all the agencies that administer the Labor Employment Laws on a national level as well as a trickle-down effect which we can talk about later on, in terms of what that means for local government agencies.

Kate Bronfenbrenner: The right to work issue is a huge issue and it’s going to affect labor’s pocketbooks, and what labor is going to have to do, is learn to organize, not learn to organize internally, and the unions that learn to do that will be effective.

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Intro: Welcome to the award-winning podcast ‘Lawyer 2 Lawyer’ with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession.

You are listening to Legal Talk Network.

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J. Craig Williams: I am Craig Williams coming to you from Southern California. I write a legal blog called May It Please the Court. Bob?

Bob Ambrogi: And this is Bob Ambrogi, coming to you from outside of Boston, Massachusetts, where I write a blog called LawSites. I also co-host another Legal Talk Network program called Law Technology Now, along with Monica Bay.

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Bob Ambrogi: Well, we are going to be talking Labor Law today. The National Labor Relations Act was passed by Congress in 1935, the Taft-Hartley Act written in 1947, these are some of the key laws governing labor relations in the United States today. Many other labor laws governing workforce and employers have really changed little while the working world has changed quite dramatically over those years.

So are U.S. Labor laws due for a major overhaul?

J. Craig Williams: And also, in recent months, President Trump has nominated Alexander Acosta to fill the Secretary of Labor spot after his first pick Andrew Puzder withdrew his nomination.

Today on ‘Lawyer 2 Lawyer’, we’ll take a look at U.S. Federal Labor laws, reform, current legislation and the impact a new Secretary of Labor under a Trump presidency will have on the workforce and employers.

To do that, today we’ve got a great lineup for you. Our first guest is attorney Howard Wexler; he is an Associate in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts at trial and appellate levels as well as federal and state agencies including the National Labor Relations Board, Equal Employment Opportunity Commission, Department of Labor, New York State Division of Human Rights and New Jersey Division on Civil Rights.

In his role, Mr. Wexler has extensive experience defending both single and multi-plaintiff discrimination harassment cases, class and collective actions as well as lawsuits initiated by the EEOC. Welcome to the show, Howard.

Howard Wexler: Thank you. Great to be here.

Bob Ambrogi: Also joining us today is Kate Bronfenbrenner. Kate is the Director of Labor Education Research and a senior lecturer at Cornell University’s School of Industrial and Labor Relations where she does teaching and research on union and employer strategies in organizing and bargaining in the global economy.

Kate has also done extensive research on the impact of trade policy on employment wages, and unionization. Prior to joining the Cornell Faculty in 1993, Kate was an Assistant Professor in Labor Studies at Penn State University and worked for many years as an organizer and union representative with the United Woodcutters Association in Mississippi and with SEIU in Boston as well as was a welfare rights organizer in Seattle, Washington.

Welcome to ‘Lawyer 2 Lawyer’, Kate.

Kate Bronfenbrenner: Good to be here. Thank you.

Bob Ambrogi: Thanks for joining us. And one of the things that struck me in preparing for this show and thinking about this show is how union membership has changed since the 30s and the 40s when these major labor laws were written, when Congress passed the Taft-Hartley Act of 1947.

(00:05:09)

Something, 25% of the workforce was unionized then. Now, according to the U.S. Bureau of Labor Statistics, it’s about 10.7% or last year it was and that’s down a little bit from 2015.

So not only has the number of unionized employee has changed dramatically but the workplace has changed dramatically, and so, it leads me to ask the sort of the fundamental question I think, and Kate, I just wanted to kind of start the discussion with you as to whether our labor laws are outmoded and need rethinking?

Kate Bronfenbrenner: Well, our labor laws have never been enforced or interpreted in a way that you can ever measure whether we know for sure that they do need changing. We have a labor law that every presidential administration gets interpreted a different way, depending on who is president.

And we have a labor law that has had certain groups that have never been covered under it that during times in our history have been the primary job for huge numbers of workers. So for example in 1950, 80% of black women in America were domestic workers and yet domestic workers were not covered under the National Labor Relations Act.

A similar number of Latino workers were agricultural workers and a very large number of black and white workers at that time were also agriculture workers and they were excluded under the Act. Not that the National Labor Relations Act couldn’t cover those workers but they’d been excluded because of the power of agribusiness and because frankly, Congress men at that time they were all men, couldn’t imagine not having domestic workers, couldn’t imagine having their domestic workers be organized.

So from the beginning we have had a problem that the law could be much more than it was. So we haven’t seen it fulfill what it could be and it also has never had the punitive powers to enforce itself to the fullest. So without punitive damage we don’t know what the law could be as it actually was enforced to the fullest.

So before we even talk about what we could change it, we also want to see what the law would be like that actually was enforced to do what it says it could do.

Bob Ambrogi: Now, we’ve seen President Trump roll out some significant changes as he started his presidency. What kind of changes are we expecting to see in the labor industry?

Howard Wexler: Sure. I think as the President now gets his Cabinet and his heads of the various departments covering the labor employment world in place, I think we’re starting to see some indication of where things are going.

First, he has put new chairs and for the NLRB and the EEOC, Phil Miscimarra who’s going to be the new Chair of the National Labor Relations Board. He is dissented in some recent Obama Board decisions including the “quickie election rules”, which shorten the time period from when a Petition is filed by employees to when the vote happens.

As recently, this last week in a dissent now Chairman, Miscimarra, who is still in the minority in terms of Republic and Democrat split until the Board is up to its full five members, describe the current system as one with — it has a preoccupation with speed rather than the actual substance in the vote itself. And one that we wouldn’t tolerate for president and/or for a high school election let alone to determine whether or not employees going to be represented by unions.

So I definitely think there’ll be some changes at the NLRB with Chairman Miscimarra coming out with his agenda; the same thing with the EEOC, where Vicki Lipnic is now going to be the head of the EEOC. Over the past few years, the EEOC has taken some positions that some of the employer community have viewed straying from what the true meaning or the words in Title VII of the Anti-Discrimination Laws are and she’s come out in her first press release after being appointed saying, she has offered the Trump’s administration claim of the number one importance being jobs, jobs, jobs, it’s going to try to get out there and try to help employers and focus more on the education aspect than on necessarily the number of lawsuits filed.

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And then to the Department of Labor, where now Mr. Acosta, it will be the presumptive choice to head the Department of Labor after Mr. Puzder dropped out giving his issues that came about.  Mr. Acosta was formerly on the National Labor Relations Board, and it’s not really clear in terms of the Department of Labor where his position will be on various issues, but the main thing that a lot of employers are looking at is the regulations that were going to increase the salary threshold for whether someone can be deemed an exempt employee or not, that  was something that the Department of Labor went through the regulatory process and was rolled out and then was enjoying back in November and since that time period the Department of Labor has basically asked for more time from the court to figure out what it’s going to do with the turnover now at the Department of Labor.

So I think it remains to be seen probably a hundred or so days from now once everyone’s in place, where things aren’t get going but there definitely will be some — some changes in all the agencies that administer the Labor Employment Laws on national level, as well as the trickle-down effect that we can talk about later on in terms of what that means in local government agencies.

Bob Ambrogi: Howard, if I could just ask, I won’t get into more of these — the details about some of these issues that you’ve just raised, but I am also curious the same question that I had asked Kate earlier, what’s your perspective on the age I guess of the sort of laws governing labor relations at least in the United States and whether there needs to be any kind of revisiting of the structure overall, the legal structure around the NLRB and around governing labor relations, labor management relations?

Howard Wexler: Yeah, I think an example of that is with respect to the disability laws by example, whether someone is entitled to an accommodation, it boils down to whether they can fulfill the essential functions of their job.

If you asked an employer 20 years ago, maybe even 15 years ago or 10, is showing up for work an essential function of your position, and I think both, in plaintiff side, employee side lawyers as well as management lawyers would generally agree.

Now, not so much given the prevalence of telecommuting, people working from home like many of us do. So I think there is definitely a disconnect between when these laws were written and kind of what the world is like now, especially on the wage and hour front as well as other areas, and the fact that whether you had referred to it as the gig economy or the uberalization of certain jobs, there is definitely more of a prevalence where people wanted to control their own schedules in more independent contractor.

Opportunity is available where they weren’t in the past, given the modern workplace. So I definitely think there is some round peg square hole kind of situations in various laws that are governed, but so I think there is some room for there to be revisions given the modern workplace.

Bob Ambrogi: Of course, a lot of that could be addressed through the interpretations of the administrative agencies that enforce those laws as well? Right, I mean through the NLRB’s decisions or the EEOC’s decisions on these matters.

Howard Wexler: Yeah. I mean exactly a lot of it is in that respect. One thing that’s now being challenged the Second Circuit which is the Appellate Court governing many in terms of including New York is whether Title VII protects transgendered individuals. The text of Title VII doesn’t include transgendered individuals, but now there is and various courts around the country are grappling with that as there has been kind of a standstill in terms of the Federal Government laws being amended.

So courts have been asked to do more, because of certain gridlock in Congress. That’s one of the many examples of that.

So then you can get into some issues with the courts having to do what the legislature hasn’t been able to accomplish, and whether or not that continues to go on given the current congressional makeup remains to be seen. But I think as to your point, these government agencies have been asked to do more and more in terms of their own administration, because they hadn’t been able to look for Congress to change any of these laws in a wholesale manner to reflect the 21st century.

Kate Bronfenbrenner: That’s what really what was behind the rule making for, what Howard calls the quickie elections, but actually was based on research that was done and I did some of the research that showed that in fact 50% of serious unfair labor practice has occurred before the petition was filed.

So it wasn’t about making elections happen faster. In fact, we have seen that the rule changes weren’t to be with that as much as to get — to get rid of some of the barriers that were happening, so that workers were not even able to get to the petition and there are so many, so many workers that don’t even get to organize because of the extreme number of illegal actions taken by employers before the petition is even filed.

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That campaigns don’t even get off the ground, and the number of delays that happen before the election process even starts, and this was not about making elections happen faster between the petition and the election, but trying to get rid of all that delays that happen that interfere with workers even getting started in the campaign.

You don’t see a rapid change. I have done a study that to see how much has changed since the rule changed or filed, then there hasn’t been a dramatic increase. What you’ve seen is that you can’t — the employers no longer can delay the election by just frivolous charges. That’s the only change.

Howard Wexler: And briefly with respect to that issue whether the — are there employers that commit unfair labor practices, there currently are. But for example, that this case that was decided last week, this European imports case that Chairman Miscimarra dissented on between the time that the challenges were worked out and the time of the election, there were three days from when employees were told, okay, you’re now able to vote because of all the challenges that got resolved to when the election was —

Kate Bronfenbrenner: But that’s the exception — that’s the exception. As I said, 50% of serious unfair labor practices happened before the petition is filed. I took five years to the population of elections and I looked to the actual primary documents of unfair labor practice documents and looked through and found the actual date the unfair labor practice occurred. And they occurred — half of them occurred before the petition was filed.

And these are the NLRB documents themselves. This isn’t a survey, this is the actual document, and that’s huge that these happen. These are not trivial things, these are only the serious, these are only discharges, interrogation, threats, harassment, wage changes, surveillance. These are not minor things.

Bob Ambrogi: What are we likely to which we expect to see happening with the Republican-dominated NLRB, what are the big issues that are likely to be addressed so that the Republicans would like to see modified in some way through their control of the NLRB?

Howard Wexler: Sure. I mean I think picking up all we have just discussed the election rules are one where at least the now Chairman has indicated having some issues with the obsession with the timing aspect of it, so that’s one area where employers are hoping there might be some change on.

There are some positions the Board has taken recently, the most publicized one isn’t the Browning-Ferris case which is currently on Appeal regarding the joint employer standard in terms of whether or not two related entities are both deemed employer for purposes of collective bargaining.

The Congress held hearings on it, on the issue and the Department of Labor has also has had been involved in their own expansion at least from the employer’s perspective expansion on that. But that’s an area where the Board has taken a different approach that the employer community had struggled with to get to its hands around, I mean that’s one that probably the Browning-Ferris case itself what the Board decided is currently on appeal, but that’s another one of the big ones from the past four to five years.

One that I think affects employers on a day-to-day basis as well is the handbooks. There has been a host of decisions from the NLRB invalidating certain provisions from the employer handbooks on things such as its nuance to whether confidentiality policies, recording policies ones having employees be cooperative or respectful for each other.

The standard, and again, this is one where Chairman Miscimarra has dissented fair amount over the past year, year-and-a-half, not necessarily on whether the rule itself violets the act, but on the test in terms of whether or not the rule itself violates the NLRA which is currently viewed as whether the reasonable employee would reasonably construe the law as restricting their ability to engage in protected concerted activity, this Lutheran Heritage line of cases.

So I know that’s one that most all employers have a handbook in one form or the other and they have been struggling for the past few years given the Board really entering this arena which they hadn’t done so much in the past and there is no real Wright Line test in terms of whether or not a rule would be deemed lawful by the current Board or not.

So that’s another one that employers are really hoping to get some clarity on because you want to have handbooks in place so that employees can consult them to figure out what your policies are, your practices are and I think in the current state there is really, there is someone who advises employers on a daily basis.

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There are some ones that clearly violate the act but there’s a lot of gray, and I think the purpose of having handbooks is so that you don’t have gray so that everything is clear and laid out, clearly and I think given the current state of the law and these decisions from the Board, it’s hard for employers to do that, and that’s another one.

There’s other decisions that Kate can chime in on in terms of if they frequently go back and forth when there is a Republican-led Board and a Democrat-led Board they switch back and forth, but those are a few of the ones that I think employers are looking carefully on to see what the Board once it’s again up to its full five members under Republican-led administration is going to do.

J. Craig Williams: Well, before we move on to our next segment, we are going to take a quick break to hear a message from our sponsors.

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J. Craig Williams: Welcome back to ‘Lawyer 2 Lawyer’. I am Craig Williams and with us today is Howard Wexler, an Associate in the Labor and Employment group in Seyfarth Shaw’s New York office and Kate Bronfenbrenner, she is the Director of Labor Education Research and a senior lecturer at Cornell University’s School of Industrial Relations.

We’ve been talking about the appointment of the New Labor Secretary. Kate, I would like to follow up with you about President Trump’s intention. It seems that there is a significant amount of effort in the new administration to deconstruct federal involvement in various areas of the law and return power to the states. Do you see that happening here in the new appointment of Acosta?

Kate Bronfenbrenner: Well, I think that Trump does want to do that, what’s unclear is whether he can do that in terms of labor law. The 14th Amendment is pretty clear and since states have Labor Boards the court decisions have come down over the years very clearly that Labor Relations Law is very clearly a private sector law belongs to the federal level, and they have not allowed States to make decisions on private sector employees when it comes to these decisions relating to organizing other than your right-to-work. They have been allowed to pass laws about collective bargaining, but not organizing.

So the other thing is that there’s really a question of how long Trump will be President since all of these kind of decisions will be challenged through the courts up to the Supreme Court, and we’ve seen that with all the major labor law decisions were challenged up to the Supreme Court and when you had a one-term president they were reversed very often and went back down and it takes more than four years for them to go up to the court.

Bob Ambrogi: What about that right-to-work issue? Howard mentioned I think earlier in his comments that we might see sort of a trickle-down effect towards the states in setting labor policy anyway and I think it’s roughly half the states have right-to-work laws now and other states are still considering it.

Kate Bronfenbrenner: The right-to-work issue is a huge issue and it’s going to affect labor’s pocketbooks and what labor is going to have to do is learn to organize, not learn to organize internally and the unions that learn to do that will be effective, and we’ve had public sector unions organizing successfully in the South for hundred years and they’ve learned to do that and you see those unions have been quite strong.

Bob Ambrogi: What do you mean by that, organize their members to support the union itself?

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Kate Bronfenbrenner: Public sector unions in the South have never had collective bargaining rights. They were not only right-to-work, they didn’t have collective bargaining rights and they gained collective bargaining despite the fact there weren’t collective bargaining laws. You see unions like CWA organizing very effectively in Texas. The teachers organizing across the South are very strong, teachers union, SEIU organizing in Atlanta, public sector workers in Atlanta and other unions organizing in Atlanta, so Atlanta is actually a union city. I mean, unions are very powerful in Atlanta. You have steel workers organizing in Alabama. Mobil being a strong union town, so that you have had unions being able to organize and right-to-work states despite the fact their right-to-work states.

We have to remember that it’s not too long ago that we had textile workers organized by ACTU across the South. We had furniture workers organized across the South who left not because of right-to-work, but because the tariff and NAFTA. So it isn’t that you can’t organize with right-to-work, it’s that you have to organize more effectively and strategically. In fact, the win rates under the NLRB have been higher in the south than they have been in the Midwest and the Northeast.

It’s just that the unions who win are unions who have a more effective strategy and have to work harder to stay organized. There are a lot of unions who don’t know how to do that and they’re going to have to learn to do that in right-to-work states or they won’t survive.

J. Craig Williams: Well, it looks like we’ve just about reached the end of our program so we’d like to take this moment to invite our guests to share their final thoughts and their contact information, and Howard, let’s start with you.

Howard Wexler: Sure. Thank you for the time, I appreciate the time and it’s been a great discussion, and I think 100 days from now it’ll be a different discussion in terms of we’ll have some more clarity, but to the extent people are interested in discussing any of these issues, Howard Wexler, my firm is Seyfarth Shaw LLP, so you can find me online or LinkedIn or Twitter. I think it will be interesting time and I think one thing we haven’t touched upon is the Supreme Court. Obviously, there’s a pending individual Judge Gorsuch who is up to be on the bench and there’s couple of big decisions in the appointment space that are again worth monitoring.

The one involves class action waivers that one is not going to be heard in the fall term. There’s a circuit split on that issue and that’s a big hot bun issue for employers, as well as whether or not the case that Justice Scalia would hear to all argument but passed away before it was decided, piggybacking this right-to-work discussion, the Friedreich’s case about agency fees and public sector employer.

So I think the Supreme Court, the makeup of the court if Judge Gorsuch gets confirmed, it will go a long way in deciding some of these issues as Professor Bronfenbrenner said a lot of these issues and almost all of them will end up down by the Supreme Court at some point and whether and to what extent President Trump gets to put more than just one member on the court will go a long way and seeing how these issues get resolved long-term.

Kate Bronfenbrenner: And Kate Bronfenbrenner, I can be reached at Cornell University either at my email, kob23cornell.edu or by looking at the Cornell website and searching just for my name, I’m very easy to find, just if you know how to spell my name, which is, B-R-O-N-F-E-N-B-R-E-N-N-E-R.

I agree very much with Howard that a lot depends on the Supreme Court cases coming up and also just on what labor and what Congress decides to do particularly both Democrats and Republicans in Congress, which way they decide to move and which way the public decides to move in.

Bob Ambrogi: Yeah, there’s a lot we weren’t able to talk about today. The Supreme Court is a major one as you say, Howard, and we didn’t really get much into the EEOC or the Department of Labor, its entities such as OSHA, so maybe we’ll have to revisit it as you say in 100 days or so and see what starts to happen.

But really happy to have both of you, we’ve been talking with Howard Wexler, an Associate in Labor and Employment Group at Seyfarth Shaw’s New York office and Kate Bronfenbrenner, Director of Labor Education Research and a senior lecturer at Cornell University’s School of Industrial and Labor Relations.

Thank you so much to both of you for taking the time to be with us today.

Kate Bronfenbrenner: Thank you.

Howard Wexler: Thank you.

Bob Ambrogi: And Craig, it’s that what brings us to the end of another show.

This is Bob Ambrogi, as always thanks for listening. Join us next time for another great legal topic. When you want legal, think ‘Lawyer 2 Lawyer’.

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