Commentary, Trump Administration

Trump administration rolls back labor protections

The Trump Administration this week made good on its promise to roll back its Department of Labor’s stance regarding protections for employees who work for more than one company.

Formally adopting its proposed interpretation of “joint employment,” the Department set forth criteria for when it thinks a company is sufficiently involved in a worker’s employment that it should be liable for wage and hour violations suffered by that worker.

Not surprisingly, this new standard is much more stringent that what is being used by most courts, and what the Department’s interpretation was of joint employment under the previous administration.

By restricting a finding of joint employment to those companies who hire or fire, pay, keep employment records, and control schedules and job conditions, it will be harder for the Department to enforce wage standards in workplaces where higher level corporations contract out responsibility to other entities.

Fortunately, because the rule is arguably interpretive rather than legislative, it may not be entitled to much deference by the courts.  It should also be relatively straightforward for a future administration to return to a more common-sense interpretation.  Worker advocates are considering their options.

Resources on Joint Employment are available here and here from the N.C. Justice Center and the National Employment Law Project, respectively.

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

Commentary, Higher Ed

UNC’s Silent Sam settlement, a bad deal executed very poorly

The Daily Tar Heel, a student-run newspaper, is in the midst of a serious role reversal with the adults over at the UNC Board of Governors.

That much is clear following the paper’s inherently logical suit charging the UNC board violated our state’s open meeting laws when they negotiated a $2.5 million settlement with the Sons of Confederate Veterans to take Silent Sam off their hands, in addition to a $74,999 payment intended to keep its protesters off an already simmering campus.

The paper’s management corporation is asking the court to nullify the agreement, an outcome virtually everyone not currently seated on the UNC Board of Governors or in legislative leadership would prefer at this point.

Boards have the luxury of discussing such matters with their attorneys in private, although it’s another matter for several board members to design and sign a deal in private without even a public notice.

The idea was bad, and the execution was even worse.

Fittingly, WRAL’s Capitol Broadcasting Corp. slammed the university system board in an editorial Tuesday.

The courts should drop this dismal deal, and the UNC Board of Governors—one of North Carolina’s leading lights for humiliation these days—should sit the next few plays out.

From the editorial:

The reporters and editors at the Daily Tar Heel in Chapel Hill have been doing their job in examining the Silent Sam consent agreement between the University of North Carolina, the UNC Board of Governors and the Sons of Confederate Veterans. It’s a good thing. They are digging to answer the basics: Who did what, where, when and why.

The DTH has also been working to uncover the how. Did the procedures the UNC Board use follow the state’s Open Meetings Law?

The DTH investigation, so far, raises disturbing questions about a lack of basic due diligence by the board and the university.

The newspaper, a non-profit student-run publication that’s been around for 127 years, has gone to court to nullify the consent agreements. The two deals with the Sons of Confederate Veterans that pays the group $74,999 to not protest on campus and $2.5 million to shelter and display Silent Sam were reached “in total secrecy in violation of the Open Meetings Law.”

In addition, the lack of transparency leads to wonder why and how could a university pay anyone to give up their 1st Amendment rights? It goes against the most basic precepts for freedom of inquiry that quality universities stand for.

Will the university now pay other groups to stay off campus? This deal sets a terrible precedent.

The most basic due-diligence on the part of UNC-Chapel Hill and the UNC Board of Governors clearly has been neglected.

The DTH revelations are raising questions about whether the key party to the deal, Sons of Confederate Veterans, violated tax and campaign spending laws. State Attorney General Josh Stein, Secretary of State Elaine Marshall who oversees non-profits — along with the state Revenue Department and state Board of Elections, all must look into these serious matters.

The rush to approve anything, at any cost, to get rid of the Silent Sam issue has done just the opposite. In fact, Superior Court Judge Allan Baddour, who signed the initial consent judgment and order is reexamining his approval and will be holding a hearing on Feb. 12 to further look into the deal.

It is time for the courts and regulators to say enough-is-enough. Terminate the deal. University officials should be ashamed of themselves.

Commentary

After “emergency” iStation purchase, who is Superintendent Mark Johnson working for?

Last week, Policy Watch’s Greg Childress reported the latest head-scratcher from N.C.’s Department of Public Instruction, where Superintendent Mark Johnson—a very loud lame duck, sort of—ordered the “emergency” purchase of nearly $1 million from iStation to continue offering its reading assessment technology.

The purchase fell afoul of the decision-makers over at the state Department of Information Technology (DIT) again and Johnson’s tortured iStation saga became a little more tortured.

From Childress’ report:

State Superintendent Mark Johnson may have violated state policy when he failed to seek approval from the state’s Chief Information Officer (CIO) before signing an emergency contract with Istation to assess the reading levels of North Carolina’s K-3 students.

As a result, State CIO Eric Boyette may “suspend or cancel” the contract if DPI cannot adequately justify the “emergency purchase” or the “execution of the RFQ (Request for Quotes),” which took place outside of normal business hours.

Johnson made the $928,570 purchase for services late Tuesday. Istation had been implementing its reading assessment program for free, but that arrangement ended Dec. 31.

Johnson cited a state procurement policy that gives agencies the authority to make emergency purchases to prevent the cessation of an important program. Under the policy, such purchases can be made without CIO approval if they’re made after regular business hours.

DPI has been given until 10 a.m., Tuesday to answer five questions about the emergency purchase.

“In the absence of a sufficient amended justification fully responsive to this memorandum and the questions below, the Sate CIO may exercise his authority to under [state law] to cancel or suspend any information technology procurement that occurs without the state CIO’s approval,” Patti Bowers, DIT’s chief procurement officer wrote in a letter to the N.C. Department of Public of Instruction (DPI) and Tymica Dunn, DPI’s procurement manager.

Bower said the Dec. 31 expiration of a “no cost” contract between DPI and Istation did not rise to the level of an emergency.

“Mere expiration of the “no cost” Memorandum of Agreement executed August 27, 2019, does not constitute an emergency sufficient to trigger this purchase authority,” she wrote. “If every contract signed after business hours constituted an emergency, the term would be rendered meaningless.”

The emergency purchase came one day after a superior judge refused to lift a stay to allow DPI to continue to work with Istation. The judge’s ruling left North Carolina without a tool to assess reading levels of its K-3 students.

Even so, Bowers said procurement rules must be followed.

“The Office recognizes that maintaining reading comprehension testing for the state’s children is an urgent matter and that certain statutory obligations exist; however, even the continuation of a vital program does not abrogate the responsibilities of purchasing agencies and the Department of Information Technology,” Bowers wrote.

Whatever the agency feuding at play here, it’s fair to wonder who Johnson is working for with this latest shot off the bow. DIT was right to question whether Johnson’s office was stretching the meaning of “emergency” when they unilaterally moved last week.

And the grandstanding sets up continuing legal battles over the K-3 reading assessments. It’s hard to imagine, given the poisoned process thus far, that the outcome of this decision is not poisoned as well.

DPI has until Tuesday morning to answer DIT’s questions, but when Johnson’s office gets around to responding to those official questions, we’ve got another 100 or so questions, starting with: Who is this decision expected to serve?

Look for updates soon from Policy Watch.

Commentary

Weekend humor from Celia Rivenbark: How we wish the impeachment trial would work

THE JURY POOL, COUNTY COURTHOUSE, USA—

Bailiff: Mr. McConnell, you and Mr. Graham are up next. Please just step through the doors to the courtroom and prepare for your voir dire.

Mr. Graham: Voir who? What kinda commie talk is that? Look, I was raised an American in South by God Carolina. I’m not speaking French or whatever devil language you just said.

Mr. McConnell: Ha! The lil feller is just kidding. He’s an attorney by trade. We are prepared to answer the judge’s questions as to our impartiality.

Bailiff (not amused): Take your seats. The judge will begin with you, Mr. McConnell.

Judge: We’re here to uncover any biases, conflicts or other reasons to dismiss any potential jurors. Does anyone have any questions before I begin?

Mitch McConnell: Just one, your Honor. I believe I read somewhere that I can be excused from jury duty because it would pose financial hardship…

Judge: That is true. But, in your case, because you have a verifiable net worth of $17 million, I believe the financial hardship excuse would not apply.

McConnell: Hmmm. I see. Well, what about age? I’m too old. Or mental and emotional instability? I read somewhere that’s a sure-fire way to avoid serving on a jury. Anyone who has paid close attention can see that I’m plainly schizophrenic. Like how when Bill Clinton was impeached, I was all “hey, let’s call as many witnesses as it takes” and now, with President Trump being impeached, I’m all “We’re not letting any witnesses testify because that could go really bad for us.” See? I mean that’s crazy, right?

Judge: Yes, your record of hypocrisy is unsurpassed but we are hoping when you swear an oath to be impartial, you will tell the truth.

Graham (snickering): Good one, your Honor!

McConnell: Look, I just don’t have any respect for the notion of being impartial. Is that the defendant over there? He looks guilty to me. He’s got the cold, dead eyes of a serial killer, pallid skin, weak chin….

Judge: Let the record show, Mr. McConnell is pointing at his own reflection in the courthouse mirror.

McConnell: I can’t serve. I’m a full-time student.

Judge: No, you aren’t.

McConnell: Sole caretaker for my aging parents?

Judge: Please stop embarrassing yourself and making a mockery of the judicial system!

McConnell: But, your Honor, it’s what I do best! I subvert the Democratic process at every turn. (preening) Surely, you’ve seen my body of work?

Judge: Bailiff, please dispatch Mr. McConnell to jail to rethink his answers.

McConnell: Don’t make me laugh. Maybe you missed the part where I’m a rich white man? Wait! What are you doing? Are those shackles?! (DISTANT CRYING…)

Judge: What about you, Mr. Graham? Can you promise to be an impartial juror?

Graham: Not a chance in H-E- double toothpicks, your Honor. I have formed my opinion ahead of any evidence. We good?

Judge: No, we are not good. Bailiff!

Graham: Wait! I’m a nursing mother?

Judge: Pathetic.

Celia Rivenbark is a New York Times-bestselling author and columnist. Visit www.celiarivenbark.com.

Commentary, News

The week’s top stories on NC Policy Watch

1. Flower to the people: NC law enforcement, prosecutors say not so fast


North Carolina law enforcement officials and prosecutors are getting blunt about their position on smokable hemp: it looks like weed, it smells like weed and officers can’t tell it apart from weed, so ban it.

“Since smokable hemp and marijuana are indistinguishable by appearance and odor, without enactment of legislation clearly banning smokable hemp, we will have de facto legalization of marijuana,” states a joint press release from North Carolina Sheriffs’ Association, the NC Conference of District Attorneys, the NC Association of Chiefs of Police and the NC State Bureau of Investigation.

The organizations are urging lawmakers to pass Senate Bill 315, the North Carolina Farm Act of 2019, as soon as possible so law enforcement, prosecutors, licensed farmers and the public “clearly know what hemp substances are lawful and unlawful.” [Read more…]

2. What to do about pollution from “forever chemicals”?


State and federal officials are starting to act, but proposed rules and standards take time and vary widely

Toxic PFAS — perfluorinated compounds — are known as “forever chemicals” because they persist in the human body and the environment for decades, if not hundreds of years.

It also takes forever to pass permanent environmental standards regulating them.

North Carolina plans to enact stronger rules for one type of PFAS, also known as —perfluorinated compounds — toxic chemicals that are widespread not only statewide but throughout the world. But people living in affected areas say the proposal is too weak. [Read more…]

3. UNC student newspaper files suit alleging Silent Sam settlement violates open meetings law

The DTH Media Corporation, the non-profit that operates UNC-Chapel Hill’s Daily Tar Heel student newspaper, has sued the UNC Board of Governors over the controversial Silent Sam settlement.

The suit, filed Tuesday, alleges that the board violated North Carolina Open Meetings Law in the way it approved the $2.5 million deal with the Sons of Confederate veterans, which also included a $74,999 payment to assure that the group would not use Confederate flags in on-campus protests. [Read more…]

Bonus read: Attorney Hugh Stevens: UNC Board of Governors “egregiously and constantly” violated law

4. State Superintendent Mark Johnson is prepared to sign another emergency contract for Istation if legal issues aren’t resolved by March

State Superintendent Mark Johnson said Wednesday that he’s prepared to sign another emergency contract with Isation if the legal issues over the state’s K-3 reading assessment tool isn’t resolved by the end of March.

“We are hopeful to have resolution to these circumstances by that time,” Johnson said. “If we don’t, we can take it up then. This is definitely not something that we view as a contract that you could get all the way through the school year with unless the process is ongoing.”

Johnson made his remarks during a telephone conference call with the State Board of Education (SBE). He was in Washington D.C., on N.C. Department of Public Instruction (DPI) business.[Read more…]

5. Greed and instant gratification rule the day: The Right abandons traditional conservatism for values and policies it once rejected

It’s nothing new when political movements and parties undergo fundamental transformations. Think about it: in the middle of the 20th Century, the Democratic Party – particularly in the South – was, despite its occasional willingness to use government as a societal problem solver, the party of segregation and racism. Longtime Alabama governor and segregationist George Wallace started out as a Democrat. Jesse Helms did too.

And, of course, the Republican Party – the party that today garners microscopic support from people of color – was once widely understood to be “the party of Lincoln.” Prior to the New Deal era, Black voters (where and when they were permitted to vote) overwhelmingly supported Republican candidates. [Read more…]

6. How Trump’s lies may cost him during the Iran saga

President Donald Trump (Photo by Joe Raedle/Getty Images)

Although he torches norms like a 10-year-old cooks bugs beneath a magnifying glass, Donald Trump is not the first American president to be compromised. In wartime, peacetime, or whatever it is we are calling this incendiary moment.

As the journalist Eric Alterman explained in his 2004 autopsy of executive mendacity, “When Presidents Lie,” FDR lied in Yalta, Kennedy lied in Cuba, LBJ lied in the Gulf of Tonkin, Nixon lied in Watergate, Reagan lied in Iran, Bush lied in Iraq, Clinton lied over his affairs, and—if there is currently oxygen in the room where he is standing—Donald Trump is probably lying to someone right now. [Read more…]

7. Friday Follies: Lawmakers head back to Raleigh, Mark Johnson doubles down and some new huffing and puffing about hemp

Lawmakers return to Raleigh to do…well…something…maybe

The North Carolina General Assembly takes the latest step in its ongoing transition to a de facto fulltime legislature next week. Less than two months after having vacated the capital for the holiday season, lawmakers will return to Raleigh on Tuesday for a session of indeterminate length and indeterminate subject matter.

News reports in recent days have speculated that the session may be brief – just a day or two or three – and deal with relatively low-profile topics like scholarships for the children of veterans and compliance with federal tax changes. Then again, rumors also persist that Senate Republicans will make a run at overriding Gov. Roy Cooper’s nearly-seven-month-old budget veto – if they can convince a Democrat or two to develop a conflict that keeps them away from Raleigh, or perhaps even to abandon the Governor. [Read more…]

8. Weekly interviews and commentaries with Rob Schofield (podcasts)

Click here to listen.

9. Editorial Cartoon: Birthday greetings from the shameless senator