Commentary

North Carolina takes step forward in addressing worker misclassification

Workers in North Carolina received some welcome news last week – the signing of a Memorandum of Understanding between the NC Industrial Commission and the U.S. Department of Labor that should make it easier for both agencies to investigate cases of employee misclassification. The term misclassification refers to workers whose employers have incorrectly treated them as independent contractors rather than employees.

Misclassified workers miss out on many of the benefits of employees, including worker’s compensation, unemployment insurance, and overtime pay. But the damage goes beyond the harm to individual workers—the state loses tax dollars because employers are not paying their share of payroll taxes, a problem that is well documented.

Surprisingly, employee misclassification is not illegal in North Carolina. While there have been efforts to address this, the General Assembly has not passed legislation that would impose penalties on employers who misclassify workers.

The good news, however, is that workers who are incorrectly treated as independent contractors now have the option to make a complaint with the Employee Classification Section of the NC Industrial Commission. The Section coordinates with other state agencies so they may undertake their own investigations into whether the employer owes unemployment taxes, should be paying overtime to its workers, has not been properly paying payroll taxes, or needs to purchase workers’ compensation insurance.

The new MOU with the U.S. Department of Labor will also ensure that evidence of misclassification is shared between the state and federal governments. It’s a good step toward the broader reform that is needed to protect workers and provide revenue to the state.

Commentary

Provision added to regulatory reform bill would undermine farmworker unions

Farmworkers

As has been common with bills drafted by this General Assembly, the title of HB593 does not adequately describe its contents.  The “Act to Amend Certain Environmental, Natural Resources, and 3 Other Laws” deals with wide ranging subjects, including storm water, erosion, reptiles, and mopeds.  A late addition, Section 17, adds unions to the mix.

Section 17 seeks to modify North Carolina’s Right to Work law, more accurately described as “the right to work for less.”  This law allows workers who don’t pay union dues to benefit from a contract negotiated with the employer.  The General Assembly amended the right to work law during the 2013-14 legislative session, voiding agreements that condition the purchase of agricultural products on the union status of that producer.  That amendment aimed squarely at interfering with the Farm Labor Organizing Committee (FLOC)’s highly successful model of organizing tripartite agreements between farmworkers, growers, and the companies that purchase agricultural products.

The Indy wrote yesterday about the GA’s past meddling with FLOC:

In 2013, the legislature passed the sweeping Regulatory Reform Act, called House Bill 74, which stripped farmworkers of the ability to llectively bargain and barred corporations from putting pressure on the farms they get their products from to ensure fair labor standards. If HB 74 had passed a decade earlier, says Justin Flores of the Farm Labor Organizing Committee, the FLOC wouldn’t have been able to reach a collective bargaining agreement with the NCGA.

“What this General Assembly did, including Senator Jackson,” says N.C. AFL-CIO secretary-treasurer MaryBe McMillan, “was make farmworkers even more vulnerable by limiting their ability to come together and create these supply-chain agreements so they could get corporations to put power on growers to make sure farmworkers are paid decent wages and treated fairly.”

Now the General Assembly wants to step into private agreements between growers and farmworkers in settlement of litigation.  Section 17 would prevent agreements whereby a grower recognizes an employee union as part of a negotiation between the parties to a lawsuit.  It is unclear why growers would want their hands tied in such a way that they could not bargain freely to resolve litigation in a way that they consider to be beneficial to their interests.

Commentary

International visitors work in North Carolina, nationally through J-1 program

If you have traveled to the Outer Banks recently, chances are you have been waited on by an international student. Stores, restaurants, and hotels on the North Carolina coast are increasingly turning to temporary foreign workers to fill customer service and cleaning positions in the summers.

These workers come to North Carolina on what is known as a J-1 visa. The J-1 program was developed to provide a cultural exchange experience for international visitors. Described by the State Department as a “work and student-based exchange visitor program,” the J-1 program attracted 6,927 people to North Carolina in 2014 for a variety of different programs, among them camp counselor, au pair, intern, trainee, and summer work travel. A few of the programs are designed as specific learning opportunities for international visitors, scholars, and students, but others place people into short-term employment.

While some J-1 workers undoubtedly have a positive experience with their host employer, others have found the promised cultural exchange and training to be sadly lacking. Unfortunately, some J-1 workers have experienced exploitative working conditions. Dozens of J-1 workers from Asia and Eastern Europe went on strike in 2011 to protest working conditions at the Hershey packing facility where they were placed. A year later, the Department of Labor settled their complaint against the plant for $213,000 in back wages and $143,000 in safety and health violations.

Au pair workers on J-1 visas recently won an important victory when a federal judge in Colorado allowed their lawsuit against multiple cultural exchange sponsoring agencies to go forward. The workers, typically paid $197.75 per week, allege that the sponsoring agencies illegally conspired to keep wages low and failed to ensure they were paid the minimum wage and overtime. Au pair workers can get in touch with the attorneys conducting this litigation here.

J-1 workers in North Carolina can learn more about their rights through the North Carolina Justice Center’s new J-1 worker factsheet, found here.

Uncategorized

GAO finds hazardous conditions in poultry, meatpacking continue

poultry workers.jpg

The General Accounting Office (GAO) publicly released a report yesterday on workplace health and safety conditions in the poultry industry.  While noting a decline in injury and illness rates from 2004 to 2013, the report highlights the problem of underreporting and inadequate data collection.  The GAO report includes 3 recommendations for Executive Action:

Recommendation: To strengthen DOL’s efforts to ensure employers protect the safety and health of workers at meat and poultry plants, the Secretary of Labor should direct the Assistant Secretary for Occupational Safety and Health, working together with the Commissioner of Labor Statistics as appropriate, to develop and implement a cost-effective method for gathering more complete data on musculoskeletal disorders.
Agency Affected: Department of Labor

Recommendation: To develop a better understanding of meat and poultry sanitation workers’ injuries and illnesses, the Secretary of Labor should direct the Assistant Secretary for Occupational Safety and Health and the Commissioner of Labor Statistics to study how they could regularly gather data on injury and illness rates among sanitation workers in the meat and poultry industry.

Agency Affected: Department of Labor

Recommendation: To develop a better understanding of meat and poultry sanitation workers’ injuries and illnesses, the Secretary of Health and Human Services should direct the Director of the Centers for Disease Control and Prevention to have the National Institute for Occupational Safety and Health (NIOSH) conduct a study of the injuries and illnesses these workers experience, including their causes and how they are reported. Given the challenges to gaining access to this population, NIOSH may want to coordinate with the Occupational Safety and Health Administration to develop ways to initiate this study.

Agency Affected: Department of Health and Human Services

The report follows a recent release from Oxfam America focusing on the poultry industry’s denial of bathroom breaks to workers.

Commentary, News

OSHA actions, OSHA inactions

poultry workers.jpg

The US Department of Labor announced yesterday that information about injuries and illnesses suffered by employees in certain high hazard industries will now be made publicly available, analogizing this to the requirement that restaurant safety grades be posted where the public can see them.  The increased transparency is welcome news for worker safety advocates in North Carolina, who last year criticized NC OSHA for not accurately reporting the number of worker fatalities in North Carolina.  At a Worker Memorial Day observance in Raleigh last month, attendees asked the Department of Labor to increase its commitment to worker safety on the job.  Oxfam America also issued a follow-up report on the poultry industry earlier this week, highlighting the need for OSHA to ensure workers have access to bathroom breaks. Unfortunately, the House budget, released yesterday, calls for the elimination of two OSHA safety compliance positions, which inexplicably have been vacant for more than two years.