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. 

News

Pelosi picks impeachment squad; House votes to send articles to Senate

WASHINGTON — An Army veteran, a former cop and a congressional aide during the Nixon impeachment proceedings are among the U.S. House Democrats who will soon make the case for ousting President Donald Trump from office.

The U.S. House on Wednesday approved a resolution that named seven impeachment managers to serve as prosecutors in the upcoming Senate trial against Trump. The resolution also triggers the transmission of the impeachment articles to the Senate.

House Speaker Nancy Pelosi (D-Calif.) announced the roster of impeachment managers on Wednesday ahead of the floor vote.

“Today, I have the privilege of naming the managers of the impeachment trial of the president,” Pelosi said. “It is their responsibility to present the very strong case for the president’s impeachment and removal. The impeachment managers represent the patriotism, pluralism and vibrancy of America.”

The roster includes House Intelligence Committee Chairman Adam Schiff (D-Calif.) and Judiciary Committee Chairman Jerry Nadler (D-N.Y.), who have led the House impeachment investigations. Another manager, Rep. Zoe Lofgren (D-Calif.), was on the Judiciary Committee during the impeachment of President Bill Clinton and she was a committee aide during the Nixon impeachment proceedings in the 1970s.

The other managers: Reps. Hakeem Jeffries of New York, a former litigator; Val Demings of Florida, a former Orlando police chief; House freshman and former U.S. Army ranger, Jason Crow of Colorado; and Sylvia Garcia of Texas, another freshman and former presiding judge of the Houston Municipal System.

Pelosi selected fewer House managers than there were during the Clinton impeachment proceedings; there were 13 Republican managers during Clinton’s Senate trial.

The Senate trial against Trump is expected to get underway as early as next Tuesday.

Senate Majority Leader Mitch McConnell (R-Ky.) slammed House Democrats Wednesday as the chamber prepared to send the impeachment articles to the upper chamber.

“Speaker Pelosi and the House have taken our nation down a dangerous road,” McConnell said. “If the Senate blesses this unprecedented and dangerous House process by agreeing that an incomplete case and subjective basis are enough to impeach a president, we will almost guarantee the impeachment of every future president.”

Robin Bravender is the Washington bureau chief for the States Newsroom network, of which Policy Watch is a member.

Environment

2019 warmest on record in North Carolina (and so far, 2020 is no slouch)

The average temperature in 2019 not only set a record as the warmest in North Carolina in more than 120 years years, but it blew that benchmark out of the water.

The statewide average temperature was 61.22 degrees, a full 2.7 degrees warmer than the average measured from 1901 to 2000, according to a blog post by state climatologist Kathie Dello and applied climatologist Corey Davis.

Last year North Carolina tied or broke 881 daily maximum temperature records, which was almost four times the number of broken or tied daily minimum records, the scientists reported.

May and September were among the top five warmest months, as was October. Remember October? Remember the sun searing your scalp at high noon? The Raleigh-Durham International Airport hit 100 degrees on Oct. 3, the first time the reporting station ever experienced its yearly high during that month, according to the National Weather Service..

So if it seems hotter to you, it’s not your imagination. In the past 30 years, North Carolina has recorded each of its five warmest years on record — 2019, 1990, 2017, 2016 and 1998 – along with 10 of its 30 warmest years.

None of those years were among North Carolina’s 30 coolest years on record.

The trees are shedding their blossoms in Nash Square in downtown Raleigh, Jan. 14, 2020. (Photo: Lisa Sorg)

2020 has started with 14 consecutive days of above-average temperatures/ These are occurring  not only during the day, but at night as well. The low on Jan. 13 at RDU was 64. The average: 31 degrees.

Weather Underground, which provides historical data from the National Weather Service, shows that the daily average temperature –add the high and the low and divide by 2 — has been off the charts. Just yesterday, the daily average was 64.64 degrees. The historical “normal”: 41.

Dello and Davis delivered more bad news about our changing climate: In North Carolina, the climate is projected to warm anywhere from 4 to 10 degrees by the end of the century.

“Benchmarks like this record don’t just make for coffee-shop small talk; they’re the evidence in the case pointing to this global phenomenon hitting us here in our backyard. These numbers and records have actual consequences and translate into impacts – to our people and our livelihoods,” they wrote.

Education

State Superintendent Mark Johnson answers Department of Information Technology questions. He blames agency for emergency purchase.

State Superintendent Mark Johnson contends “inaction” by the N.C. Department of Information Technology (DIT) forced him to make an “emergency purchase” for services from Istation to allow school districts to conduct mandatory mid-year reading assessments of the state’s K-3 students.

“Due to NCDIT’s actions (blocking the diagnostic and then inaction (taking more than five months, thus far, to conduct its review), there was no reading diagnostic in place and educators were justifiably demanding a solution,” Johnson said in response to DIT questions about the emergency purchase.

Johnson’s claims were made in response to a letter the N.C. Department of Public Instruction (DPI) received from DIT on Friday warning that Johnson may have violated state law by not getting DIT approval before making the purchase.

Patti Bowers, DIT’s chief procurement officer, also warned that Chief Information Officer Eric Boyette may exercise his authority to cancel or suspend the contract because Johnson did not receive approval to make the purchase.

State Superintendent Mark Johnson

Johnson was given until 10 a.m., Tuesday to answer five questions about the emergency purchase worth more than $928,000.

Click here to see Johnson’s responses to DIT’s questions.

Johnson contends he had little choice in executing the emergency contract because the state’s Read to Achieve law requires that a diagnostic tool is in place to assess reading levels of K-3 students.

He also noted that mid-year assessments are underway and that more than 500,000 tests are scheduled to be given this month.

“If there is no reading diagnostic in place, then DPI, the State Board of Education, and our public schools will be in violation of state law and an entire class of students will be deprived of benchmark statistics used to guide decisions on how to better meet their needs,” Johnson said.

An administrative hearing on the merits of the controversial $8.3 million, three-year contract award to Istation is currently underway. The hearing is scheduled to conclude on Thursday, but it’s doubtful a decision will be made this week.

DIT Chief Counsel Jonathan Shaw is the presiding hearing officer. Boyette will make the final decision in the case.

Amplify, an Istation competitor whose mClass assessment tool had been used in North Carolina’s K-3 classrooms for several years, filed a protest over the summer contending the contract was unfairly awarded. In August, the DIT granted Amplify a temporary stay against the use of the Istation reading assessment tool.

Shaw upheld the stay in December, contending the “evidence and arguments of record” are sufficient to indicate that DPI failed to comply with state law and information technology procurement rules and “jeopardized the integrity and fairness of the procurement process.”

Johnson has claimed that the procurement process was tainted. He contends, among other things, that some committee members breached confidentiality and were biased in ways that tilted the evaluation in favor of Amplify and its mClass reading assessment tool previously used by the state.

Many teachers have been critical of the switch from Amplify’s mClass to Istation. They have questioned the procurement process and contend Johnson ignored the recommendations of an evaluation committee that ranked mClass over Istation.

The reading diagnostic tool is a companion to the state’s signature education program, “Read to Achieve,” which was launched in 2013 to ensure every student reads at or above grade level by end of third grade.

The results haven’t been great even as North Carolina has spent $150 million on the initiative. More than half of the state’s children in K-3 are still not reading at grade level.

Istation has been training teachers to use the reading diagnostic tool for free. It said last month that more than 180,000 North Carolina students in grades K-3 have been assessed using its reading diagnostic tool.

 

News, public health

State health experts ask Congress for help combating opioid crisis

WASHINGTON — North Carolina and other states need sustained, flexible federal funding to support programs working to reduce deaths and addiction from opioids and other drugs, state health officials told Congress today.

Public health officials asked lawmakers for continued commitment to Medicaid and programs that help states address drug addiction problems. A panel of the U.S. House Energy and Commerce Committee held a hearing on the issue.

“Moving an entire system of care is a monumental task. We’re working diligently and we’ve made staggering progress, but please don’t give up,” Jennifer Smith, secretary for the Pennsylvania Department of Drug and Alcohol Programs, told lawmakers. “It depends on sustained funding and support.”

States, particularly North Carolina, have been trying to respond to a growing problem of addiction and overdose to opioids and other drugs. From 1999 to 2017, nearly 400,000 people across the United States died from opioid overdoses, according to the Centers for Disease Control and Prevention.

Federal lawmakers passed a collection of bipartisan bills in 2018 aimed at fighting the crisis. The legislation provided states billions of dollars in federal funding to assist with response, treatment and recovery.  

State public health officials from Pennsylvania, Massachusetts, Rhode Island and West Virginia also credited Medicaid expansion in their states for giving them the ability to pay to treat many of those who face addiction.

Rep. Diane DeGette (D-Colo.), who chaired the hearing, said states are now facing a “fourth wave” of the opioid crisis: a large increase in methamphetamine use.  

“In 2018, there were more than twice as many deaths involving meth as 2015, and meth is increasingly turning up in overdose deaths and drug busts across the country,” DeGette said. 

“Given the complexity of the epidemic and its ability to evolve, states, federal government agencies and Congress must remain vigilant.”

“This is not a crisis that we can resolve overnight, and it requires ongoing federal and state attention,” said Energy and Commerce Committee Chairman Frank Pallone (D-N.J.). “States are on the front lines of this national emergency, providing much of the support for those in need.  They are our eyes and ears on what is occurring on the ground, and that’s why this hearing is so important.”

Over the past two decades, North Carolina has had 12,000 deaths due to opioid overdose, according to the North Carolina Department of Health and Human Services (DHHS).  In 2016, North Carolina was in the top eight states for fentanyl overdose deaths alone.

“North Carolina was hard hit by the opioid crisis. The consequences have been large, and far reaching,” said Kody Kinsley, a DHHS deputy secretary.

In 2016, 1,407 people died in North Carolina due to unintended overdoses. For each death, there were six more hospitalizations, Kinsley said. But in 2018, North Carolina saw its first decline in deaths in five years. 

“The most significant thing you can do would be to give us more time. Sustaining funding over longer windows of time or permanently would allow states to be ready for the next wave of the epidemic,” Kinsley said. 

Kinsley asked for lawmakers to increase the substance abuse and treatment block grants, which have stayed constant for North Carolina even though the population is growing. 

Kinsley said an even bigger boost would be for North Carolina lawmakers to expand Medicaid. More than half of the people who come to North Carolina hospitals with an overdose are uninsured, so much of the extra federal funding for opioids in North Carolina goes directly to their treatment. North Carolina provided treatment to 12,000 uninsured persons with the federal programs.

But that also means that money is not available to start new programs like other states that rely on Medicaid to treat their patients, like Pennsylvania and Rhode Island.

“At present, more than two-thirds of our federal opioid response grants are just going for treatment and expanding care for those that are uninsured,” Kinsley said. “So we do not have those dollars available to expand workforce and treatment.”

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