In a jarring reversal of fortunes, a pending National Labor Relations Board case that was supposed to be a weapon for unionizing hundreds of thousands of low-wage fast-food workers under Obama may now morph into an anti-labor bludgeon for big business under Trump. The fate of one of the country’s largest poverty-wage workforces now hangs on an arcane legal debate over whether McDonald’s can be held responsible as a formal employer for all the workers who toil under the Golden Arches.
By Sharon Block and Benjamin Sachs Washington Post
For the past three years, the federal government has painstakingly built a case against the world’s second-largest private employer, McDonald’s, charging the company with illegally harassing and terminating employees who have gone on strike with the “Fight for $15″ campaign.
Last month, shortly before the trial was expected to conclude, Peter Robb, the general counsel Trump appointed to the NLRB, announced that he wanted to halt the trial to settle the case with McDonald’s and its franchisees.
"The deal may presage the growing desire among millennials for a better work-life balance, and a readiness to mute wage demands in exchange for a shorter work week and more time for family, children, and care-giving," Brookings' Mark Muro tells Axios. "In that sense, this is consistent with trends in prosperous countries towards reduced hours, in the midst of plenty."
"but ... don't look for such concessions to reach the U.S. any time soon, suggests Sharon Block, who runs the Labor and Worklife Program at Harvard Law School. "It shows a growing divide between what is going on here and the rest of the industrialized world," she told Axios.
How Does the Gig Economy Fit into Labor Law? New technology. Old questions. That’s the perspective of former National Labor Relations Board general counsel Richard Griffin Jr., who was among the panelists this week at a forum on labor law. Griffin, now counsel to Bredhoff & Kaiser in Washington, says there’s nothing new in one of the central questions of the gig economy: Are workers employees or independent contractors? Some of the first major labor cases before the Supreme Court focused on that issue—such as whether newspaper delivery people were considered contractors or employees.
Sharon Block, a former NLRB member and now executive director of Harvard Law School’s Labor and Worklife Program, had this to say: “I think there is a tendency to get distracted by the bright, shiny object of technology. To assume that because technology is involved doesn’t mean that standards don’t apply. The standards of the relationship isn’t changed.”... Read more about Labor of Law: Driving Labor Law Into the Gig Economy
The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents "seemed to be a rush to set the clock back on workers' rights as much as possible."
The Department of Labor has proposed a new regulation that would allow businesses to collect tips earned by their employees and either redistribute them to non-tipped workers or keep them as part of their own profits.
Critics say that there is nothing in the regulation that would stop business owners from simply seizing their employees' tips and using the extra income to line their own pockets or make capital investments — a practice they call "tip stealing," or wage theft.
Women and people of color are both more likely to be tipped employees and to earn lower wages than white men, so critics say the law would have a disproportionate adverse impact on both, and particularly women.
"What is at stake is the ability of women to support themselves and their families," Sharon Block, executive director of the Labor and Worklife program at Harvard Law School and a former DOL official under the Obama administration, told Business Insider. "People often overlook that minimum wage workers are disproportionately women."
The outcome of the major U.S. Supreme Court case over whether companies can ban class actions in employment agreements holds new importance as women join together to speak out against sexual misconduct in the workplace, former National Labor Relations Board general counsel Richard Griffin said Wednesday.
Sharon Block, executive director of Harvard Law School’s Labor and Worklife Program, said forcing workers to bring claims as individuals could have the effect of taking away the rights outlined in Section 7 of the National Labor Relations Act, which protects concerted speech.
“It can eliminate protections for workers who need that protection the most,” Block said. “I think this is a tremendously important case. The consequences of it, if it comes out the wrong way, could be significant.”
Business advocates who have been pressing the federal government for years to increase its regulation of worker centers like Fight for $15 are more hopeful than ever that they'll get their way after a string of reversals of Obama-era National Labor Relations Board precedent.
"There's been a continuity to this issue across different administrations,” said Harvard Law School Labor and Worklife Program Executive Director Sharon Block, who was a DOL policy official in the Obama administration. "[Acosta] injected this uncertainty into what I think had no uncertainty."
William Emanuel has recused himself from ruling on disputes involving his former law firm’s clients — but then used unrelated cases as vehicles to help Republican colleagues accomplish the same thing.
Former Obama NLRB member Sharon Block agreed. “Deciding a case in a way the parties didn’t ask you to decide it seems to me inevitably to raise the question: Why are you doing this?” said Block, who now heads the Labor and Worklife Program at Harvard Law School. “Emanuel having clients that actually had made that request — at the very least that creates a huge appearance problem.”
THE AMERICAN LABOR movement, over the past four decades, has had two golden opportunities to shift the balance of power between workers and bosses — first in 1978, with unified Democratic control of Washington, and again in 2009. Both times, the unions came close and fell short, leading, in no small part, to the precarious situation labor finds itself in today.
[Sharon] Block, the former lawyer to Kennedy in the Senate [current Executive Director, LPW], doesn’t think Obama’s lackluster advocacy really made much of a difference. In fact, she said, some version of EFCA probably would have gotten through, but the final blow came when Senate Democrats lost 60 votes following Kennedy’s death. When the Massachusetts Democrat died of brain cancer in August 2009, he was succeeded by Republican Sen. Scott Brown, and the filibuster majority was no more, and EFCA never came up for a vote again.
We are proud to present this year's John T. Dunlop Memorial Forum speaker: The Honorable Tom Perez, HLS and HKS'87, DNC Chair and former U.S. Secretary of Labor. Moderated by Sharon Block, HLS. Additional remarks by Archon Fung, HKS and David Weil, Brandeis Heller School.
OPEN TO THE PUBLIC
Sponsored by the Harvard Trade Union Program Labor and Worklife Program, Harvard Law School Ash Center for Democratic Governance and Innovation, Harvard Kennedy School
In November, Labor Secretary Alex Acosta said ominously that he was “looking at” the possibility of imposing new regulations on worker centers that could hobble their ability to get funding and operate freely. This would be the regulatory equivalent of a sniper taking pot shots at the medic who has rushed onto the battlefield to tend to a dying soldier. It is a remarkably bold threat. To see what is at stake, I traveled to frozen Minneapolis, home to one of the most effective worker centers anywhere in America.
[Sharon Block, who served as a Labor Department official in the Obama administration and is now the director Harvard Law School’s Labor and Worklife Program] points out that the George W. Bush administration already scrutinized worker centers on the same basis—and the Bush Labor Department sided with the worker centers, twice. “Who am I to argue with the Bush administration?” she laughs.
The Trump administration is moving to undo the actions of former President Obama on almost every front, and now it's happening with breathtaking speed at an agency charged with protecting worker rights.
Now, it appears Robb may also back off what has become one of the most expensive and staff intensive cases in the board's history: A complaint filed against McDonald's in 2014 that claims the company should be held liable for alleged retaliatory actions by its franchisees against workers who participated in daylong strikes as part of the Fight for $15 movement, a union-backed campaign to raise wages.
"I think that's a bellwether issue as to whether this leadership cares about these statutes making sense and applying today," said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, who served as head of policy at the Department of Labor until President Trump took office. "Or is this just a way of letting everybody fend for themselves, without the protections that they were supposed to have?"