Employee Rights Briefing
June 2017
What We're Reading
The Institute News

Employee Rights In The News news
In The News
According to the May 10 Bloomberg BNA article, " Trump to Nominate Big Law and Government Lawyer for Labor Board Spots," the President is moving forward with filling two vacant positions on the National Labor Relations Board (NLRB), and plans to have the nominees confirmed by the Senate before its August recess.

In 2015, the U.S. Department of Labor adopted regulations extending overtime and minimum wage protections to home health care workers. Now, according to the Bloomberg BNA article, " Congress Mulls Exempting Home-Care Workers From Wage Laws," federal Republican legislators are preparing a bill to reinstate the pre-2015 exemption that denied America's fastest-growing sector of workers essential wage and hour protections.

On May 10, the National Association of State Workforce Agencies released a new report summarizing the current research and analysis capacity of its member state workforce agencies. The study included information from 41 participating states, and found that demand for workforce research by policymakers in those states exists, but "many state workforce agencies lack the staff capacity and funding to implement a robust research agenda."

According to a new report by the Economic Policy Institute on wage theft, " Employers Steal Billions From Workers' Paychecks Each Year."

On May 10, a U.S. News & World Report article, " Democrats, Republicans Compromise On Minimum Wage Hike," explained that Maine lawmakers are currently considering legislation that would deny tipped employees the wage increase they won at the ballot box just a few months ago. Under the ballot initiative approved by voters last November, by the year 2024 Maine employers will be required to pay all their employees the full state minimum wage, and will no longer be permitted to pay workers who regularly receive gratuities a lower hourly rate.

Although St. Louis' new minimum wage of $10 per hour went into effect on May 5 after two years of delay, thousands of workers in that city may not keep the wage increase for long. On May 12, the Missouri state legislature approved a bill preempting cities and municipalities from enacting a minimum wage higher than the state minimum wage of $7.70 per hour. If the law is enacted by the Governor, over 35,000 low-wage workers may see their pay cut by 20 percent or more.

Workers' Rights By The Numbers:

The percentage of the American population age 25-54 with a Bachelor's or advanced degree.

The number of working mothers, as a percentage, who are their family's sole or primary breadwinner.
( National Women's Law Center )

The number of African American women, as a percentage, who provide half or more of their family income.
The percentage
of minimum wage workers over the age of 20.
347 to 1
The ratio  of the average S&P 500 CEO's salary in 2016, compared to the average worker .
In the May 15 issue of  The New Yorker, contributor Nathan Heller asked, " Is The Gig Economy Working?" The article includes an interesting answer to the question from former U.S. Labor Secretary Tom Perez.

Current U.S. Labor Secretary Alexander Acosta affirmed on May 22 that he will not act to delay the "fiduciary rule" from partially going into effect in June. A week later, the Economic Policy Institute published the explainer, " Here Is What's At Stake With The Conflict Of Interest ('Fiduciary') Rule."

Maryland Gov. Larry Hogan  vetoed a bill on May 25 that would have guaranteed paid family leave to workers in the state.

On May 30, New York City Mayor Bill De Blasio signed a package of  laws designed to provide the city's fast food workers with predictive scheduling and pay protections. Among the enactments are the requirements that fast food restaurant workers receive their schedules two weeks in advance and are provided a break of at least 11 hours between shifts.

Employee Rights In The Courtscourts
In The Courts
On May 8, President Trump announced a host of judicial nominations, including five nominees for open positions on the U.S. Courts of Appeals and four District Court nominees.

In Oliveira v. New Prime, Inc., the U.S. Court of Appeals for the First Circuit ruled that transportation workers who have been classified as independent contractors fall under the Section 2 exemption of the Federal Arbitration Act (FAA). Jennifer Bennet at Public Justice wrote a brief summary of the case in her blog, " First Circuit Thwarts Trucking Company's Efforts To Force Workers Into Arbitration."

On May 15, in Kindred Nursing Centers Ltd. P'ship v. Clark, the U.S. Supreme Court held that the FAA preempted a Kentucky state rule requiring those possessing power of attorney to be given express authority before they could enter into an arbitration agreement on behalf of their principals. The result is that wrongful death claims brought against a nursing home on behalf of two now-deceased former residents could be forced into arbitration.

On May 26, the U.S. Court of Appeals for the Sixth Circuit, in NLRB v. Alternative Entertainment, Inc., joined the Seventh and Ninth Circuits when it ruled that forced arbitration clauses in employment documents that include class and collective action waivers violate the National Labor Relations Act, and are therefore unenforceable.
The Institute News
inst1The Institute Welcomes New Employee Rights Advocacy Law Student Fellow
The Institute is pleased to welcome our 2017 Employee Rights Advocacy Law Student Fellow, Ana Duong. Ana is a rising 2L at Berkeley Law. The daughter of Southeast Asian refugees from Vietnam, Ana is the first in her family to graduate college and to attend law school. Her past experience as a child garment worker inspired her to go to law school and to advocate for employee rights. She is a Director for Berkeley Law's Workers' Rights Clinic, which hosts a free weekly clinic for community members with employment-related legal issues. Ana also serves as a Co-Chair for the Coalition for Diversity, Social Chair for the Asian Pacific American Law Student Association, and Submissions Editor for the Asian American Law Journal. Ana received the Berkeley Law Foundation's Phoenix Fellowship for her commitment to social justice and the NAACP Legal Defense and Educational Fund's Earl Warren Scholarship for her commitment to racial justice and outstanding potential for training as a civil rights and public interest attorney. Before law school, Ana earned simultaneous degrees in Asian American and Asian Diaspora Studies and Society and Environment from UC Berkeley.

inst22017 NELA Annual Convention Law Student Program Registration Now Open
Law students and recent law graduates are invited to join The Employee Rights Advocacy Institute For Law & Policy (The Institute) and the National Employment Lawyers Association (NELA) for " Social Justice Lawyering: From Law Student To Employee Advocate." This engaging and interactive presentation will be held at NELA's 2017 Annual Convention on Wednesday, June 21, 2017, from 5:00 --  6:15 p.m., at the San Antonio Marriott Rivercenter.

Experienced employment law practitioners will discuss how a career in plaintiff-side employment law offers a unique and meaningful way for new lawyers to use their skills to drive progressive social change. They will share how their work as advocates for employee rights intersects with and advances other social justice issues including civil rights, immigration, environmental justice, LGBT rights, and gender equality. The panelists also will address how to enter the plaintiffs' employment law field and suggest the types of skills and experience that can help prospective workers' rights advocates as they begin their legal careers.

Immediately following the program, attendees are invited to participate in the 2017 NELA Annual Convention President's Welcome Reception, from 6:30 --  8:00 p.m., where students will have the opportunity to network in a casual environment at the nation's largest gathering of plaintiffs' employment lawyers.

While there is no cost to attend, students and recent graduates are requested to register by June 15, 2017. For questions or comments, please contact Elizabeth Colman, Paul H. Tobias (PHT) Attorney Fellow, at ecolman@employeerightsadvocacy.org.

inst3The Faces Of Forced Arbitration
The Institute would like to invite you to be a part of a new project it is developing: The Faces Of Forced Arbitration. Too often discussions of forced arbitration involve a lot of legal and technical jargon, while the human impact is lost. The Faces Of Forced Arbitration will serve as a platform for workers to tell their personal stories and share the real harm they endure when they lose their right to go to court.

In order for this project to be successful, we need employees who have suffered under the weight of a forced arbitration clause to come forward. Please share information about this project with your networks, and encourage the people you know who have been harmed by forced arbitration to speak up. If you know of any employees who would like to participate in this groundbreaking effort, please have them contact PHT Attorney Fellow Elizabeth Colman at ecolman@employeerightsadvocacy.org.

inst4Workers Beware: Forced Arbitration Can Happen To You
The use of forced arbitration clauses in the workplace is becoming more and more pervasive. Yet, because the proceedings often are confidential, it is impossible to know how many employees are affected. To expose companies that try to shield themselves from public accountability, The Institute has launched its Workers Beware project, which enables employees to discover whether an employer is known to force its workers to forego their rights in exchange for a paycheck. Now workers and allies can use our reporting tool to help expand this list by identifying companies that attempt to hide their bad behavior behind the closed doors of forced arbitration proceedings.
The Employee Rights Briefing is a monthly newsletter designed to help keep you up-to-date on breaking news and emerging trends impacting America's workers. From the growth of forced arbitration of employment disputes, to employee misclassification, to stories of wage theft and workplace discrimination, the Employee Rights Briefing will report on employment law and policy developments from the federal government to state legislatures to the courtroom and everywhere in between. Our goal is to provide you with a digestible snapshot of the events shaping employment law and policy, so that you can be kept abreast of the most important issues facing today's workers.

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