Commentary, News, public health, Trump Administration

Trump administration moves to curb health and safety rules for workers

President Donald Trump (Credit: Gage Skidmore/Wikimedia Commons)

The Trump Administration launched its latest attack on working people yesterday, repealing a 2016 rule requiring large employers to electronically report injuries and illnesses to the federal Occupational Safety and Health Administration (OSHA).

And this is just the latest assault. Previous efforts have included privatization of inspections in hog slaughtering plants, allowing 16- and 17-year-olds to operate patient lifting machines in nursing homes, limiting mine and oil rig inspections, and many others.

See the statement below from Deborah Berkowitz, program director for worker health and safety with the National Employment Law Project, a nonpartisan research and advocacy group that focuses on low-wage and unemployed workers:

“Today, despite the ongoing federal government shutdown, the Trump administration announced yet another rollback of workplace safety protections. The final rule, published today, allows dangerous employers to hide workplace injuries, seriously hindering the efforts of the Occupational Safety and Health Administration (OSHA)—as well as the efforts of state agencies, the public health community, workers, and employers—to identify and prevent workplace injuries.

“The administration’s new rule repeals provisions of an existing rule adopted in 2016—the ‘Improve Tracking of Workplace Injuries and Illnesses’ rule—which required large employers (those with 250 or more workers in an establishment) to electronically submit to OSHA important detailed information on injuries at their workplaces. The administration has arbitrarily reversed the conclusions of the 2016 final rule, which found enormous benefits to the rule—not just in targeting scarce agency enforcement resources, but in providing compliance assistance and overall injury prevention efforts.

“Without citing any supporting evidence or facts, the Trump administration has again sided with big corporate interests over working people. It ignores the abundance of evidence that workers and their representatives overwhelmingly supported the collection of this data. Once again, the Trump administration has ignored the voices of workers and their representatives, and listened exclusively to large corporations and their lobbyists who don’t want to report any of this information to the government and the public. It’s yet another shameful move by the Trump administration.”

Carol Brooke is a senior attorney for the N.C. Justice Center’s Workers’ Rights project. 

Courts & the Law, News

Underpaid au pair workers settle lawsuit for $65.5 million

Childcare workers who earn less than the minimum wage had a big win this month with the settlement of a lawsuit against 15 companies who recruited so-called au pairs from around the world.

The former employees, who traveled from their home countries on J-1 visas to work for U.S. families, were typically paid a salary that works out to $4.35 per hour, for 45 hours of work per week.

The lawsuit alleged that the au pairs’ sponsoring agencies colluded to create the impression that State Department salary guidelines for paying au pairs set a ceiling on compensation rather than a floor.  If it is approved by the court, 100,000 former au pairs will benefit from the settlement, which will pay out $65.5 million in back wages.

The J-1 program, and particularly the au pair part of the program, is marketed as a cultural exchange.  Critics describe it as a work visa with little oversight and serious abuses.  Former employees recount stories of financial struggle and lack of support from sponsoring agencies.

Persons who worked as au pairs on J-1 visas between January 1, 2009 and October 28, 2018 may benefit from the settlement if it is approved.  Information can be found here.  Current au pairs may be able to use this model agreement to help negotiate understandings with their employers, and can find more information about their legal rights here.

Carol Brooke is a senior attorney with the N.C. Justice Center’s Workers’ Rights project. 

Commentary

A rare bit of good news for North Carolina workers

North Carolina’s state government took an important first step this week toward recognizing and addressing the problem of misclassification, which occurs when employers wrongly classify employees as independent contractors. On August 11, Governor Cooper signed The Employee Fair Classification Act (SB 407). The Act codifies the Employee Classification Section in the NC Industrial Commission, established by Governor McCrory via Executive Order in 2015. The section was originally created in response to series of articles in the News and Observer that highlighted the costs of worker misclassification on employee wages and benefits as well as the harm to state coffers and to competing businesses that classify their workers appropriately.

While the new law is a good first step, many more are needed to address the problem, since the work of the Employee Classification Section remains hamstrung. Three obvious ones top the list:

  • North Carolina does not currently recognize worker misclassification as per se illegal, and there are no penalties to deter employers from wrongly classifying employees as independent contractors. This needs to change
  • In other states, agencies or task forces established to combat misclassification have the power to issue stop work orders to employers violating misclassification law. North Carolina should adopt such a rule.
  • Additionally, there is no current legal framework in North Carolina to prohibit state or local governments from contracting with businesses that misclassify their workers.Again, we should move in this direction.

The bottom line: The new law is a good start, but only one small step. North Carolina needs more comprehensive protections for workers and businesses to deter and stop employee misclassification and state leaders should redouble their efforts in this area.

Commentary, News

Report: NC employers stealing $316 million per year from employees; Labor Commissioner faulted

A bedrock principle of private property is that stealing is wrong. Yet the problem of employers refusing to pay their workers the wages they’ve earned—or wage theft—is pervasive and growing in North Carolina. That’s the message of Employers steal billions from workers’ paychecks each year, a report recently released by The Economic Policy Institute.

This report looks specifically at employers’ failure to pay the minimum wage to their employees at in the 10 most populous states, including North Carolina, and reveals the magnitude of the impact of wage theft on the low income workers who are least able to withstand it. While other types of wage theft are also harmful – non-payment of overtime wages and illegal deductions, for example – minimum wage violations are a direct hit to low income workers who rely on their wages to meet basic needs.

Workers in the food and drink industry suffer the highest rates of minimum wage violations, followed by agricultural workers (some of whom are not covered by minimum wage laws), leisure and hospitality, and retail workers. Unsurprisingly, women, young people, people of color, non-citizens, workers with lower levels of education, unmarried, workers, and workers without the protection of a union contract are disproportionately affected, though that is primarily because they are also more likely to be low wage workers.

Labor Commissioner Cherie Berry’s lax enforcement is cited in the report

EPI found that 12.3% of low wage workers in North Carolina who are covered by minimum wage laws are not receiving minimum wage—and they’re losing almost a third of the wages they are due. This is the third highest average loss among the states studied, just behind Texas and Pennsylvania.

The researchers attribute this in part to a lack of political will to enforce the law:

“The severity of minimum wage violations in North Carolina may come as less of a surprise given that the state’s elected labor commissioner during the period studied showed little interest in enforcing wage laws. An investigation by The Charlotte Observer noted that during the commissioner’s 15-year tenure, her office “sued companies for failing to pay wages only 35 times, an average of less than 2.5 times a year” (Locke 2015) [See The Reluctant Regulator].…

It is noteworthy that in all three of these states—Texas, Pennsylvania, and North Carolina—the binding minimum wage is the federal minimum wage of $7.25. The particularly large lost wages for wage theft victims in these states, despite the relatively low value of the minimum wage, raises questions about these states’ legal framework, penalty structure, and enforcement practices for combating wage theft. To the extent that these states are deferring enforcement to federal authorities, they may be placing their state’s most vulnerable workers at risk of particularly harmful labor practices.”

EPI advocates for greater enforcement, higher penalties, and better legal protections against wage theft and retaliation to combat this pervasive problem.

Special Session

ALEC-inspired proposal lets franchisors escape responsibility, puts onus on small businesses for violations

In another twist in the ongoing saga of the special legislative session, the first section of the General Assembly’s so-called Regulatory Reform Act (HB3) deals a blow to restaurant and other franchise owners who take actions at the direction of the franchisor (the corporate entity that grants an individual or corporation the right to run a location of its business). Following in the footsteps of states like Texas, Tennessee, and Louisiana, the proposal seeks to put liability for wage and hour, workplace injuries, and unemployment benefits squarely on the backs of franchisees, even when the illegal acts may have been committed in conformity with the policies and procedures of the franchisor. In other words, if the bill passes, a local Waffle House franchise owner, for example, could be sued for following the orders of Waffle House’s corporate headquarters, while the headquarters remains shielded from challenges in court.

The American Legislative Exchange Council (ALEC), at the apparent behest of the International Franchise Association, has been promoting similar legislation in states across the country. The impetus for these bills appears to be the 2015 decision by the National Labor Relations Board, Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Recyclery, 362 NLRB No. 186 (Aug. 27, 2015), in which the Board interpreted of the definition of employer to cover the franchisor. Scrambling to avoid liability, franchisors are supporting bills that dramatically scale back their liability for a host of workplace violations for which they are responsible– simply by changing the definition of employer to exclude franchisors. Under HB3, franchisors would no longer be jointly responsible if the workers at a particular outlet were denied overtime, injured, or wrongly fired. All liability would rest on the local business owner, who might have been acting at the behest of the franchisor and will have to absorb a judgment that they may very well not be able to handle.

But why, lawmakers might argue, should a franchisor be considered an employer if all of the control over the employees rests with the franchisee? Of course, they shouldn’t – and they wouldn’t, under existing North Carolina law. The only purpose served by the franchise provision of HB3 is to let franchisors off the hook when they do exercise control over the employment relationship. And that is the height of unfairness both to the injured, underpaid, or unemployed worker, and also to the franchisee, who may be a small business owner who is simply doing what they are told.