By Christy Rakoczy
A series of recent lawsuits brought against the ride-sharing company Uber centered on one key question: are Uber drivers "independent contractors" or employees? Uber argued drivers were contractors. A big legal settlement and most court cases ended with Uber's position prevailing.
Why does this matter, and why were so many lawsuits filed by drivers who wanted to be viewed as employees? One big reason: employees get way more and better workplace protections than contractors.
Unfortunately, a growing number of people are being hired as independent contractors — which is leaving them out in the cold when it comes to certain worker benefits and protections. But there are other rights they retain.
If you're hired as an independent contractor, here's what you need to know about your rights — and how to protect yourself from employers that might otherwise take advantage of you.
1. You might not actually be an independent contractor in the government's eyes
Employers may prefer to hire workers as independent contractors because it's much less expensive. A company could save anywhere from 20% to 40% on labor costs for an independent contractor versus an employee, according to the AFL-CIO.
The problem is, employers looking for cost savings sometimes call a worker an independent contractor when the worker isn't actually one, based on how the law defines it. When a worker should be an employee but an employer treats them as a contractor, this is called "misclassification."
"Misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy," according to the Department of Labor.
The IRS and the Department of Labor each have their own tests determining if a worker is an independent contractor. The Department of Labor's economic reality test focuses on issues like whether the contractor's work is a key part of an employer's business, the permanency of the employer/worker relationship and extent of worker autonomy. The IRS looks at a worker's level of control over payments and performance and whether the employee is provided with supplies or benefits.
If you don't count as an independent contractor based on the IRS or DOL tests, you aren't one legally. It doesn't matter what your employer says or what any written contract says. If you think you may be misclassified, talk to your employer. You can also submit Form SS-8 to have the IRS review your status and you "have the right to ask a state or federal agency to review your employment status," according to Communications Workers of America.
2. You may have to pay your own taxes
"The largest incentive for misclassifying workers is that employers are not required to pay Social Security and unemployment insurance (UI) taxes for independent contractors," according to the AFL-CIO.
Each worker must pay a 12.4% tax for Social Security on income up to $127,200. Workers also must pay a 2.9% Medicare tax on all wages. When a worker is an employee, an employer pays half of both of these taxes — 6.2% for Social Security and 1.45% for Medicare. By classifying a worker as an independent contractor instead of an employee, the company avoids all of these taxes, as well as unemployment tax.
Instead, the worker must pay his entire Social Security and Medicare tax himself. If you're an independent contractor, be aware you'll be paying a lot more. You also won't have an employer to withhold tax for you and send payments into the IRS. While employers normally deduct money from your paychecks so you can comply with the IRS pay-as-you go rules, this won't happen if you're paid as a contractor.
Not only do you have to pay more in tax, but you're also responsible for complying with IRS rules by sending in enough tax money — in the form of quarterly tax payments throughout the year — to avoid a penalty.
3. You've got the right to control your work
One of the few big benefits to being an independent contractor is independence: If your employer tries to control too much of what you do, you're no longer an independent contractor.
It should be up to you where and when you work, and what rates you set for the work you do. Your employer shouldn't require you to be present onsite at certain times or stipulate your exact hours, according to the Freelancer's Union. Your employer also can't generally stop you from subcontracting out some of the work you do, or restrict what other clients you take on.
You also own the rights to at least some of the work product you create. "Under the Copyright Act of 1976, an independent contractor who has created a work for an employer owns the rights to that work, except in limited circumstances," according to Communications Workers of America.
Unless you sign a written agreement giving your employer intellectual property rights and unless the work you do qualifies as a work made for hire, your work product is your own.
4. You aren't protected by wage and hour laws — so a good contract is essential
While independent contractors have more freedom, they have far fewer workplace protections. The Fair Labor Standards, Title VII, the Family Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and state workers' comp laws are just a few of the many worker protection laws you won't be protected by, according to Communications Workers of America.
That's right. An employer can more easily get away with discriminating against you on the basis of your race, gender and national origin. Your employer could also refuse to accommodate your religious needs or your disability, pay you less than minimum wage and not pay you overtime.
Virtually the only worker protections you'll have are the ones you negotiate yourself. So you should ensure you have a detailed written contract specifying what you'll be paid and how you'll be paid. If your employer breaks the agreement, you'll have to sue for breach of contact instead of asking for help from the Department of Labor, but at least you'll have some legal recourse to try to get money owed.
5. You're responsible for your own benefits
As an independent contractor, you will not have access to employee health insurance, a 401(k), unemployment insurance or any other benefits employers provide to employees.
You'll need to shop for health insurance to comply with the Affordable Care Act's mandate that you maintain insurance coverage. There are options for independent contractors to save independently for retirement, including opening a traditional or Roth IRA. And, you'll want a hefty emergency fund to cover you in case of unemployment.
One other big benefit you aren't eligible for: workers' compensation insurance. This insurance pays for an employee's medical care and provides income if an employee becomes disabled due to a work injury.
Since there is no employer to buy workers' comp for you, you may wish to buy your own disability insurance. You don't want to be left with no income if you get hurt and cannot work for a living.
Read more from Mic.
CQC Press Office/Flickr
From Bloomberg BNA:
By Ben Penn
Industry advocates will urge the next labor secretary to reverse an Obama-era rule that extended minimum wage and overtime coverage to some 2 million home-care employees, a trade group’s top attorney told Bloomberg BNA.
“We will be seeking the reinstatement of the original rules on the companionship services and live-in domestic services exemptions once the new Secretary is confirmed,” William Dombi, vice president for law at the National Association for Home Care and Hospice, said in an April 11 email. NAHC will ask for an in-person meeting to make this request, he said.
He would prefer the department to issue a new proposed rule that would restore the DOL’s earlier interpretation of the Fair Labor Standards Act for his industry’s workforce, Dombi added. The Obama administration said in 2013 that an exemption for employees providing “companionship services” and “in-home” domestic services only covers those who work directly for a client, rather than through a third-party agency or other business.
NAHC was part of a coalition that unsuccessfully petitioned the U.S. Supreme Court to review and invalidate the Labor Department’s regulation, which took effect in late 2015. When the high court denied review in June, Dombi said the legal battle was over for the time being.
But a Republican administration keen on easing employers’ regulatory burdens could signal a new opportunity for NAHC and allies to make their pitch to undo the rules.
The rule applies the federal minimum wage and time-and-a-half overtime pay—including time spent driving between consumers—to all home-care workers, regardless of their job duties.
Acosta Awaits Senate Vote
Labor secretary nominee Alexander Acosta is still waiting to be confirmed by the Senate, which could happen as soon as late April.
Acosta hasn’t expressed views on the rule, nor did the issue arise during his March 22 confirmation hearing before the Senate’s labor committee. Controversy over the regulation has taken a back seat to discussion of other rules finalized by the DOL in 2016.
Previous Labor Secretary Thomas Perez, along with worker advocates and unions, strongly support the regulation. They’ve said it’s an important step toward improving wages in a booming workforce and ensuring that providers retain the talent to meet the needs of the elderly and people with disabilities.
If the administration considers a new rulemaking to undo the regulation, it would take time and may face legal challenges.
“These protections are in place and they’ve been in place since 2015. The Department of Labor would need to issue an entire new notice, have an entire new comment period and they would have to argue that things have changed since the new rule went into effect,” Caitlin Connolly, who directs the National Employment Law Project’s “Home Care Fair Pay” campaign, told Bloomberg BNA April 11. “We don’t feel that anything has changed since that analysis.”
A DOL spokeswoman told Bloomberg BNA that it would be premature to speculate on this topic before a new secretary is sworn in.
During the early stages of the rule’s implementation, some states have been challenged to secure state Medicaid funding to afford compensation raises for the workers. Advocates for people with disabilities have cautioned that unless carefully implemented, the regulation could lead to fewer caregivers and more people forced out of their homes and into nursing homes.
Dombi said he’s hearing from members out in the field that the first 18 months of implementation further prove the rule’s ineffectiveness.
“The new rules have not benefited workers,” Dombi said. “Instead, the new rules have triggered reduced incomes because of work hour limitations that are needed to avoid overtime costs that are not reimbursed by Medicaid and other home care benefit programs.”
Read more from Bloomberg BNA.
From the Chicago Tribune:
By Alexia Elejalde-Ruiz
Business was slow one brisk spring morning at the Dairy Queen in suburban Northbrook. Bernadette Simpson, manning the Blizzard machine, churned an ice cream treat and then made a show of holding it upside-down to demonstrate its gravity-defying thickness, as company policy requires her to do.
Simpson, 48, started working at Dairy Queen two years ago for $8.50 an hour, a quarter more than the state's minimum wage, and now earns $10.25.
She enjoys the job — "How can you not be happy working with ice cream?" she said — but scrapes by.
"I clip coupons, we look for sales, we keep things very low-key and we try to save as much as we can," said Simpson, a single mom of two who lives with her teenage daughter in Buffalo Grove.
"All change goes into a jar that's not touched, and come the end of year we take it to the bank and trade it for cash for the holidays."
Scraping by was not part of Simpson's original plan. She went to nursing school and worked in health care before she left to raise her kids and care for her ailing grandmother. But when she tried to go back to work 15 years later, after her grandmother died, employers wouldn't hire her because she'd been out of the workforce so long, she said.
So Simpson joined the swelling ranks of low-wage service workers, who increasingly look more like her: older, raising families, without many other options.
As Illinois considers raising the minimum wage to $15 an hour, up from the current $8.25, advocates say the changing face of the low-wage worker is a reason why the minimum wage must be a living wage.
But some businesses insist a hike could kill them, causing more harm to workers and communities than good.
Ed Schubert, whose family owns the Dairy Queen franchise where Simpson works, said he can't imagine how he'd keep his shop afloat with a $15 minimum wage, a rate he thinks shouldn't apply to his largely teenage staff.
"I'd give us five years and we'd be out of here," said Schubert, 66, who bought the shop nearly 44 years ago. "Whether we sell it to somebody or just be done, I don't know."
Even Simpson is on the fence about supporting a statewide hike, uncomfortable with the notion that her 16-year-old would make that much out of the gate.
Still, she said, for herself a bigger paycheck "would be fabulous."
Illinois legislators are considering a bill introduced by House Democrats to slowly raise the state's minimum wage to hit $15 by 2022, following the example of California, New York and Washington, D.C., as well as several cities. The first increase, to $9, would go into effect Jan. 1. Small business owners — but not franchisees — would get tax credits at first to help.
The bill recently cleared a House committee and will go for a vote before the full House possibly this month, though even if it passes in the House and Senate it could face a veto by Republican Gov. Bruce Rauner. Rauner has said that he supports a smaller increase in the minimum wage as part of a larger effort to reduce regulations on businesses.
One survey found Illinoisans to be skeptical. TSheets, a time-tracking software, polled 500 Illinois residents and found two-thirds said they believed the $15 proposal would fail and nearly half said they did not support it; another 20 percent were indifferent. But they didn't support the status quo, either. Only 6.5 percent of those surveyed believed the minimum wage should stay at $8.25. A raise to $12 was the most popular choice.
Workers, on one side of the debate, and businesses, on the other, both say it's a matter of survival.
To Tanya Moses of south suburban Harvey, who earns $10.50 an hour working as a home health aide, it's also about respect.
"For people to think that this isn't an important job, something's wrong," Moses, 58, said. "We don't want to pay the people to take care of the people."
While fast-food and retail workers often are the face of minimum wage, low-wage work is widespread in health care, and home health aides are among the fastest growing segments of the labor market.
The number of home care workers in the U.S. has doubled in the past 10 years, to about 2.2 million, and the field is projected to add another 634,000 jobs by 2024, according to the Paraprofessional Healthcare Institute. But they are paid little and have inconsistent hours.
Last year, cobbling together 21 hours of work a week with three clients, Moses went two months without lights in her home because she chose to pay the gas bill instead of the electricity bill. She didn't tell the neighbors, embarrassed to be without lights at her age, and filled her house with thick candles.
"The house smelled good all the time," Moses chuckled.
Moses works for Addus HomeCare, which serves 33,000 customers weekly in 24 states. More than half of its $401 million in service revenues last year came from Illinois, paid mostly by the state's Department of Aging, according to its annual report.
President and CEO Dirk Allison said in an emailed statement that "Addus supports higher pay rates for the hardworking and dedicated team that provides such valuable services to our aging adult population."
He added: "It is also important that wage increases be funded through adequate rates of reimbursement by the state."
Moses, who speaks with don't-mess-with-me urgency, said $15 hourly pay might allow her to pay both the gas and electric bills, perhaps get her off of public assistance.
She spoke as she swept the kitchen floor of her client Lee Williams, an 84-year-old widower whom she calls "Mr. Lee." Williams lives in an apartment in the Chatham neighborhood on Chicago's South Side that he shared with his wife of 54 years. Since she died three years ago, Williams said he needs help cleaning, cooking and paying bills.
Moses grew up nearby. She shimmied a bit as she recalled the dance lessons she took in Tuley Park, then described a rough adolescence. Turned out of the house by an abusive stepfather when she was 13, she slept on the streets and worked at McDonald's earning $1.90 an hour, she said.
The experience gave her sympathy for other people's struggles. A few years ago she took in a pregnant young woman who was living in a condemned home. Moses now lives with her and her two kids, aged 2 years and 9 months, relying on the young woman's Link card for food.
The young woman makes minimum wage at a pizza restaurant but her hours are unreliable, Moses said, so she's training to become a home health aide as well.
Moses spent that morning making Williams breakfast, washing the shiny buildup off the bathroom walls and scrubbing the oven, but the job is about more than that, she said.
Williams hadn't received his diabetes medication so they called the pharmacy to make sure it came the next day, Moses said. And a broken smoke alarm had been beeping for a week when she arrived.
Moses has little patience for what she sees as broad disregard for people, whom she is committed to helping.
She said she was sickly when she was young and spent time in hospitals, which shaped her view.
"The way doctors and nurses was then, they was nasty," Moses said. "So my thing was, I'm going to grow up and be a nurse and take care of people, because they don't have no care for nobody, no compassion. So that has been my goal."
Moses worked as a certified nursing assistant and ran an assisted living facility, but her goal to become a nurse got waylaid — "marriage and kids and life," she explained. She stopped working to take care of her mother, who died in December, and now has to retake the certified nursing assistant test if she wants to practice again.
Moses, a union activist with SEIU Healthcare Illinois, which represents about 50,000 of the state's home health care and child care workers, said she is focusing her energy now on the wage fight. She has scaled back work to one day a week while she undertakes an internship with the union, which pays her $15 an hour to sign up new members and organize existing ones.
It isn't easy, she said. Many workers resent the 3.3 percent taken out of their paychecks for union dues.
"If I don't go out there and speak for these people to get this money, they're not going to get it," Moses said.
Across town at the Northbrook Dairy Queen, other concerns weighed on Ed Schubert.
He's been trying to retire, and last year he transferred management to his daughter, Jennifer Spencer.
Spencer, 44, has worked at the Dairy Queen since she was 14, and though she left for a time to work on a factory assembly line, she found her way back. She got married at the Dairy Queen, saying her vows in front of the cash registers. Her son works there too.
"There's too many memories, I couldn't give it up," Spencer said.
But Schubert doesn't see how the math will work with a $15 minimum wage.
He aims to spend 20 to 25 percent of his revenues on payroll, with the rest of his budget consumed by rent, operating costs and corporate fees. During a typical year he is left with a modest profit of 3 to 4 percent, which ranges from $30,000 to $60,000.
Schubert doesn't think he could boost revenue enough to absorb a big rise in payroll costs. He calculates that if he has 10 people working for him on a busy summer Saturday, he would have to do $400 in sales each hour. Now, he's "not even close."
Raising prices is a possibility. But Schubert estimates he'd have to increase prices by 10 to 20 percent, and he worries that such a hike would hurt sales.
Schubert, who hires many teens during the summer, advocates for a "three-tier minimum wage," which takes age into account. His suggested breakdown: Teens 14 to 17 earn at least $7 or $7.50 an hour, 18- to 23-year-olds earn a minimum of $10, and adults 24 and up have a minimum of $13 an hour, which is the minimum approved by Chicago and Cook County. (Chicago is slowly stepping up its minimum wage to $13 by 2019 and Cook County will reach $13 by 2020, though several towns have opted out of the county law.)
With that mix, Schubert said he could make it work. Without it, teens could find themselves out of a job because they can't compete with more experienced workers, he said.
Read more from the Chicago Tribune.
Photo courtesy of 15Now Minnesota
From Workday Minnesota:
Community members rallied outside a Minneapolis restaurant Monday to protest proposals to pay tipped workers less than the minimum wage. That practice, they said, can lead to workers being robbed of wages they have earned.
“U.S. Department of Labor data shows that 84 percent of restaurants nationwide fail to make up the difference when there’s a tip penalty,” said Serena Thomas, a server in Minneapolis.” I don’t want to open the door to extreme wage theft in Minneapolis.”
The rally was organized by 15Now Minnesota(link is external) and other organizations who advocate a $15 minimum wage. A majority of the Minneapolis City Council has voiced support for the $15 wage, but faces pressure from the restaurant industry, which wants to pay tipped employees less.
Monday’s rally was outside a Buffalo Wild Wings restaurant near the University of Minnesota. Buffalo Wild Wings is facing a class-action, wage theft lawsuit by 58,000 current and former employees across the country for paying below the minimum wage – as little as $2.13 an hour in some states – during times when workers were unable to earn tips, such as cleaning, food prep, and opening and closing the restaurant.
Minnesota is one of only seven states that bans employers from deducting tips from workers’ wages.
“Every server deserves the stability that $15 plus tips would provide,” said Tony Korum, a server at Perkins.
Monday’s rally was accompanied by a counter-demonstration by “Pathway to $15,” a group formed by the Minnesota Restaurant Association to lobby for a tip penalty. They held signs and attempted to shout down speakers at the rally.
Read more from Workday Minnesota.
From The New York Times:
By Sarah Maslin Nir
The sign above Soft Touch Car Wash on Broadway in the Inwood neighborhood of Manhattan declares, “Open 24 hours,” but last month the bustling carwash suddenly closed. It was the same at the four other carwashes owned by the same family in New York City and the surrounding area: the phone lines disconnected, the hoses and wash mops idle and dry.
The operators of the small chain, José and Andrés Vázquez, agreed to pay $1.65 million to 18 employees to settle a federal lawsuit over stolen wages, a significant victory in the battles against wage theft in the city’s low-paying industries.
But the suddenly shuttered carwashes illustrate a persistent problem confronting many low-wage workers not just in New York but across the country: Winning in court is no guarantee that they will ever see much, if any, compensation.
The workers who toiled at the Vázquez carwashes battled for nearly six years before receiving the money they were due, their efforts hampered by the owners having filed for bankruptcy — a well-worn tactic used to avoid paying exploited workers, according to labor advocates. The owners could not be reached for comment.
Now, some New York State lawmakers are renewing a push for legislation that would put in place a type of insurance against this tactic, which crops up in industries from nail salons to restaurants. The measure would essentially enable employees who accuse an employer of wage theft to have a lien placed on the employer’s assets while the outcome is being determined.
“We are improving the lot of low-paid service workers; however, we haven’t attacked this fundamental problem of them giving their work, giving their time, and not getting compensated for it,” said Assemblywoman Linda B. Rosenthal, a Democrat who represents parts of Manhattan. “And it’s just not something we can tolerate anymore.”
In a setback for workers and their advocates, the measure was dropped from the budget agreement that state lawmakers reached. But a bill with the same measure, introduced this year by Ms. Rosenthal, is poised for a vote this spring in the Assembly.
Selling off houses and businesses — sometimes for a nominal sum, and frequently to a relative — and declaring bankruptcy is a move that experts say business owners often use to avoid paying back wages, overtime or damages, usually as a result of a court order. Under Ms. Rosenthal’s proposal, businesses would not be permitted to sell their assets while a wage dispute was underway.
“We know their tricks,” she said, referring to unscrupulous business owners. “This is an attempt to jump in front of their tricks.”
A 2015 report written by several worker advocacy organizations calculated that between 2003 and 2013, the New York State Department of Labor was unable to collect over $101 million that employers owed workers.
“It’s not surprising that people who are willing to cheat their workers are willing to transfer their assets to prevent their workers from getting what they are rightfully owed,” said Richard Blum, a staff attorney with the Legal Aid Society who works in the employment law division.
Small-business groups have opposed Ms. Rosenthal’s measure, saying it is an unnecessary and unfair burden on employers.
“It’s based on an accusation, not on proof,” said Denise M. Richardson, the executive director of the General Contractors Association. “An employee who feels aggrieved should not be able to tie up a business’s finances absent any proof that in fact they have been subject to wage theft.”
But workers say they need more powerful tools to battle employers who mistreat them.
“Right now, it is very easy for these sweatshop bosses to steal workers’ wages,” said Jin Ming Cao, who has yet to see any of the over $100,000 a judge ordered his former employer, a restaurant in Manhattan, to pay him in 2010, part of $1.5 million settlement involving a group of workers. “Even when they’re found out by a court, they just change names, it’s so easy.”
Laws allowing liens against business owners involved in wage disputes exist in half a dozen states — Alaska, Idaho, New Hampshire, Texas, Washington and Wisconsin — but only Wisconsin permits liens solely based on an allegation of wage theft, according to the National Employment Law Project. In the other states, a lien is allowed only after wage theft has been proved as a result of a lawsuit or an agency investigation, for example.
In New York, rules are already in place to protect workers in a few select industries where wage theft has been a widespread problem. In 2015, Gov. Andrew M. Cuomo imposed a requirement that nail salons carry wage bonds, a type of liability insurance designed to prevent the nonpayment of workers.
Nail salon owners have campaigned against the requirement, arguing that the price of carrying such insurance is too burdensome for small businesses like theirs. The cost varies depending on the coverage; carrying a $25,000 bond, for example, would cost an employer between $550 and $700 a year, according to providers.
Last week, lawmakers in West Virginia voted to remove, on similar grounds, a wage bond requirement that had long been in place for construction and mining industries.
On a sidewalk outside Manhattan Valley, an Indian restaurant on the Upper West Side, about 100 workers gathered recently to pass out fliers and chant that the proposed state measure, commonly known as Sweat — securing wages earned against theft — needed to become law.
When the restaurant was known as Indus Valley, a group of 10 workers sued and were awarded $700,000 in back wages by a federal judge in 2014. They still have not been paid. The owners have told the court that they sold the restaurant and that Manhattan Valley is a new restaurant with different owners. Workers and advocates claim that is a ruse to avoid payment and that the same owners still run the restaurant.
Read more from The New York Times.
City of St Charles, IL/Flickr
From The Huffington Post:
By Dave Jamieson
If Tom Ward had to die from his work, he’d rather fall off a scaffold than endure the slow death his father did from the debilitating lung disease silicosis.
“I would choose to go much quicker,” he said, “rather than to have my family watch me suffer.”
Ward fears that other workers will face the same suffocating illness as his father, thanks to the regulatory rollback underway by the Trump administration.
Ward’s father spent several years working as a sandblaster in Michigan. It was most likely on that job that he breathed a lethal amount of crystalline silica, a carcinogenic dust that comes from sand and granite. Excessive silica has been ruining workers’ lungs for as long as rock and concrete have been cut. Frances Perkins, U.S. labor secretary under Franklin D. Roosevelt, spoke publicly of the dangers of silica back in the late 1930s.
After numerous efforts under other presidents failed, the Obama administration finally tightened the regulations covering silica last year, further restricting the amount of dust that employers can legally expose workers to. The tougher standards were 45 years in the making, the subject of in-depth scientific research and intense lobbying by business groups and safety experts. When the rules were finalized in March 2016, occupational health experts hailed them as a life-saving milestone.
But now the enforcement of the rules has been delayed ― and the rules themselves could be in jeopardy.
Last week, the Trump administration announced that it was pushing back the implementation of the new silica regulations. For now, the delay is just three months ― from late June to late September, since “additional guidance is necessary due to the unique nature of the requirements,” as the Labor Department put it. A spokeswoman said the agency wouldn’t comment beyond that.
But to occupational health experts who’ve waited years for the tighter rules, the new delay casts a cloud of uncertainty over their future. The leading home-building trade group and other business lobbying groups have sued to halt the regulations, saying they are too costly for employers. Defending the silica rule would now be the responsibility of the Trump administration, which has eagerly dismantled one Obama-era regulation after another at the urging of corporations. (The rule could also be subject to an appropriations rider by the GOP-controlled Congress.)
While the administration has not signaled that it intends to reverse the silica rule, it has issued an executive order directing all agencies to review the regulations currently on their books, presumably for potential watering down or scrapping. Trump’s own labor nominee, Alexander Acosta, cited that order during his confirmation hearing as one reason he would not yet commit to enforcing the silica rule if he becomes labor secretary.
Sen. Elizabeth Warren (D-Mass.) noted the huge public health implications at stake. “You can’t tell me whether or not, high on your list of priorities, would be to protect a rule that keeps people from being poisoned,” she told Acosta.
The delay of the new silica regulations was not a surprise to Ward, given the Trump administration’s promises to deregulate businesses in order to boost hiring. But it was nevertheless painful to see. Ward now leads training at the Michigan Bricklayers and Allied Craftworkers Union, a personal mission given that his father died at age 39 after “an awful few years” of suffering from silicosis.
“Knowing it was 100 percent preventable is the part that really hurts,” he said.
Silica has been called the “silent killer.” It’s not visible to the naked eye ― particles can be one hundred times smaller than a grain of sand ― and the effects on the lungs are cumulative. But there are clear ways to curb exposure to silica, like wetting down rock that’s being cut, installing ventilation or dust-collecting equipment on the worksite, and wearing respiratory equipment designed to filter out the dust.
When the proper precautions aren’t taken, the results can be debilitating. Railroad worker Leonard Serafin shared the story of his own battle with silicosis in a letter his family provided to The Huffington Post in 2012.
At the time, the Obama White House was sitting on the silica rule, and advocates worried that the reforms might not be finished before Obama left office. Serafin had worked as a trackman on a railroad for 32 years, laying out the crushed rock and gravel in which the tracks were laid. He said the work led to chronic obstructive pulmonary disease and a litany of other lung maladies.
“I never dreamed I would have to spend my retirement years in this debilitating manner,” Serafin wrote. “I find it difficult to attend social events such as concerts and plays with my family because of my chronic cough. Even coughing while standing at a cash register line at a retail store causes people to distance themselves from me. ... When I exert myself, my daily coughing becomes a spastic type of cough, which leaves me exhausted, breathless with chest pain.”
Although U.S. regulators had been aware of silica’s dangers for decades, it wasn’t until 1971 that the federal government imposed legal limits on workers’ exposure to it: 100 micrograms per cubic meter for laborers in most industries, and 250 micrograms for those working in construction and shipyards. Many experts believed those limits were too meager, however. The caps weren’t lowered to the 50 micrograms recommended by the Centers for Disease Control and Prevention until Obama’s presidency.
The Occupational Safety and Health Administration has estimated that the new rules would cut down silica exposure for roughly 2.3 million workers, preventing an estimated 600 deaths annually. Extrapolating on that data, the AFL-CIO labor federation says even the three-month delay in enforcement “will lead to an additional 160 worker deaths.”
David Michaels, the head of OSHA under Obama, called the reform “the most important health standard OSHA has issued in decades.”
But in the eyes of the construction industry, it’s one of the most expensive. OSHA says that instituting the new controls would cost businesses an estimated $511 million annually. Meanwhile, industry lobbies say the real cost to them would be in the billions each year ― most of it due to additional equipment and labor.
While praising the Trump administration’s decision, a consortium of construction industry trade groups urged Trump to extend the delay well beyond the original three months, saying it “remains concerned about the overall feasibility of the standard in construction and has requested that the agency delay enforcement for a year.”
Supporters of the rule note that those upfront costs don’t take into account the long-term financial benefits to workers and society. Preventing disability and death saves money, after all.
OSHA estimated that the reforms would have a net benefit of $7.7 billion each year, largely due to savings on health care and lost productivity. The Economic Policy Institute, a left-leaning think tank, calls the silica rule a “case study” in how seemingly expensive safety regulations can have economic benefits over the long term.
Read more from The Huffington Post.
By Michael E. Kanell
By a three-vote margin, a national union has won the right to represent workers at a Nestlé’s facility in McDonough.
The 49-46 vote earlier this month authorized the Retail, Wholesale and Department Store Union to negotiate on behalf of the 102 eligible workers at the logistics and shipping center.
The union was happy to win, despite the razor-thin margin, said Chelsea Connor, a spokeswoman for the union. “We don’t anticipate winning with landslide votes in this era of union-busting.”
The private sector is overwhelmingly non-union, especially in Georgia.
Most of the workers in the Nestlé’s facility make between $16 and $22 an hour, she said. Negotiations for a contract should begin within the next several weeks, according to Connor.
Workers at Nestlé package and ship products, mostly chocolate milk powder.
While no similar organizing campaign is underway, the union sees a possibility in the many distribution centers ringing Atlanta, Connor said.
Although many distribution and “fulfillment” centers are filling orders via the Internet and the centers themselves use a great deal of technology, some human involvement is needed too, she said. “No matter how the products are bought, online or whatever, they have to be physically shipped.”
The union has 100,000 members nationally, including 5,000 workers in Georgia, according to Connor.
Most of the members in Georgia are in the state’s poultry processing sector, she said.
Nestlé is based in Switzerland and has recently announced plans to move U.S. headquarters from Connecticut to a Washington, D.C. suburb in Virginia. The company has 51,000 employees in the United States.
Read more from AJC.
By Katherine Don
The ironworking industry isn't exactly known for its feminine side, but a recent announcement from a major union shows that the industry certainly appreciates its female employees. According to industry sources, beginning this year, members of the Iron Workers union will be given six months of paid maternity leave. This female ironworkers' paid maternity leave policy is an important win for women in the workforce, especially since this is occurring in such a male-dominated industry.
The policy, spearheaded jointly by the Iron Workers union and Ironworker Management Progressive Action Cooperative Trust, offers six months of paid leave before childbirth, and six to eight weeks of leave after delivery. According to reporting about the new policy at BuzzFeed News, the decision was influenced by a recent all-female panel of iron workers, which spoke about the difficulties that women in the industry face. One woman in particular spoke about suffering a miscarriage after choosing to work while pregnant in order to maintain her paychecks and her health insurance.
"It was a heartfelt moment in the room," Eric Dean, the president of Iron Workers General, said of the woman's speech. "Everyone's stomach dropped, like someone had gut-punched you." Dean, along with Bill Brown, CEO of Ben Hur Construction Co., serve as co-chairs of the Iron Workers labor-management working group, and together they set to work, calculating the perks of offering maternity benefits to women in the industry. According to Modern Steel Construction magazine, the new policy was first announced in March, at the 2017 Iron Workers/IMPACT Conference in San Diego.
Brown and Dean, speaking with BuzzFeed News, revealed the calculations that went into the decision. According to Brown, training a new iron worker is a $32,000 investment. When a company loses a female employee during or after a pregnancy, this is a loss of $64,000 — taking into account the employee's own training, and the training that will be required to replace her.
"To protect our investment, if we wanted women to stay in our industry, we had to do something," Brown said.
In the larger context of parental leave policy in the United States, the new steelworker's maternity leave policy is extremely progressive, and that goes to show how extraordinarily low the bar is. The United States is one of the only countries in the world that doesn't offer some form of government-mandated paid parental leave. The only federal law in place is the 1993 Family Medical Leave Act, which requires certain categories of employer to offer up to 12 weeks of unpaid leave. Many employees don't qualify for even this skimpy protection because it only applies to workers who have been with the company for at least a year, and only if the company employs at least 50 people.
In the absence of federal guidance, some companies have decided to offer paid leave on their own. According to Forbes, companies to extend new parental leave benefits in 2015 and 2016 included Netflix, Microsoft, Amazon, Twitter, IKEA, and Chobani. Last year, Etsy, the Brooklyn-based online marketplace, extended one of the most generous policies in the country, offering six months of paid leave regardless of the employee's gender.
Despite these steps forward, the most recent numbers from the Bureau of Labor Statistics showed that only 13 percent of private sector employees had access to paid leave in 2016. That's up only one percentage point from 2015.
Read more from Romper.
From Bloomberg BNA:
By Ben Penn
An Obama executive order mandating sick leave for federal contractor employees, once considered primed for reversal by the Trump administration, may be here to stay.
The order requiring federal contractors to provide paid sick leave went into effect more than three months ago. The new conventional wisdom is that the paid leave mandate may no longer be a priority target for repeal and just might endure even after top Labor Department personnel are confirmed.
That the president’s daughter champions paid parental leave has further complicated the situation.
“With all of the things the new administration is trying to accomplish, these regulations may be the equivalent of eating dessert after a big meal: it may come much later or one’s plate may be too full to have the appetite to get it at all,” Eric Crusius, who represents government contractors as a senior counsel at Holland & Knight in Washington, told Bloomberg BNA.
The DOL’s 2016 rule implementing the executive order mandated that companies bidding on service and construction contracts must offer employees at least 56 hours of paid leave per year for a personal illness or to care for a family member.
Trump administration officials discussed revising or repealing the paid sick leave order and the DOL’s implementing rules during earlier stages of the transition, sources familiar with the talks told Bloomberg BNA. But in recent weeks, the regulation has taken a back seat, as employer advocates and GOP lawmakers turned their attention to repealing the controversial overtime, fiduciary and “blacklisting” rules.
Administration: ‘Look at What We’ve Done Already’
Ever since the election, one leading contracting advocate has continued to alert various administration and congressional leaders about the need to reconsider the paid sick leave order.
Alan Chvotkin, executive vice president and counsel at the Professional Services Council, said his outreach to the DOL, the Office of Management and Budget and Congress has thus far yielded a consistent reply.
“All of them acknowledged that [sick leave] is among the more burdensome procurement rules and labor policy rules that the Obama administration had imposed, but they’ve also acknowledged that, ‘look at what we’ve done already,’” to rollback other workplace rules, Chvotkin told Bloomberg BNA. “So the sort of response is, ‘give us a little time.‘ And I said, ‘got it, but don’t take too much time.’”
Chvotkin recalled discussing the matter with a Labor Department official within the last month, but declined to specify whether it was a career executive or one of the temporary political appointees, or “beachhead” members, in place beginning Jan. 20.
A DOL spokeswoman said it’s premature to discuss the rules without a labor secretary in place. A White House spokesman told Bloomberg BNA there are no updates as of now on the sick leave EO.
Republicans on the House Education and the Workforce Committee opted not to introduce a Congressional Review Act motion of disapproval to block the paid leave order. They instead prioritized the removal of Obama’s Fair Pay and Safe Workplaces—or “blacklisting"—order. President Donald Trump signed a measure to invalidate the regulation requiring contractors to disclose their labor violation history.
“We’ll continue to work with the administration to roll back harmful regulations while advancing positive reforms, including improving workplace flexibility for families,” Bethany Aronhalt, a spokeswoman for the workforce committee’s GOP office, told Bloomberg BNA in an email.
Wage and Hour Prepares Compliance Aid
The Labor Department's Wage and Hour Division, which is responsible for enforcing the sick leave regulation, hasn't publicized technical assistance since the inauguration.
In another indication that the rule is more likely to remain in place under the new administration, the WHD told Bloomberg BNA that the agency is in the midst of responding to employer questions.
“Because it is so soon after January 1, 2017, few contracts have been awarded that are covered by the EO,” Edwin Nieves, a DOL spokesman, told Bloomberg BNA via email. “WHD has received a number of questions regarding interpretation of certain provisions and implementation of the Final Rule. WHD is preparing responses to those questions, and is also updating training materials to provide further clarification. We anticipate that those materials will be available online later this summer.”
Thomas Perez, Obama’s labor secretary, hailed the sick leave regulation as the administration’s latest use of procurement authority to advance critical worker protections that aren’t moving in Congress. Some 600,000 workers without paid leave last year were projected to become eligible for the new benefits.
“We were glad to see that it’s still in place, and we would hope that if and when Acosta is confirmed he will continue to maintain and enforce the executive order and won’t advocate for rescission,” Vicki Shabo, vice president of the National Partnership for Women and Families, told Bloomberg BNA.
The Partnership was perhaps the most vocal group calling for the executive order. Shabo said she plans on urging Alexander Acosta to enforce it at a meeting after his confirmation, which is expected as soon as late April. The nominee did not discuss the regulation—nor was he asked about it—at his March 22 Senate hearing.
Amid the uncertainty, employers wishing to do business with the government are plodding forward.
“Inauguration day came and no changes materialized. In the interim, new contracts have gotten awarded covered by the sick leave obligations,” James Murphy, a former labor and employment counsel for federal contracting heavy-hitters General Dynamics Corp. and Northrop Grumman Corp., told Bloomberg BNA. “We’ve had total radio silence on the issue from the White House and Alex Acosta isn’t yet confirmed, so we’ve had no policy direction from the Department of Labor.”
Murphy now represents government contractor clients for Ogletree Deakins in Washington.
Many companies incorporating a new sick leave clause into contract solicitations previously provided some form of leave benefits but have still been challenged to comply with the EO’s recordkeeping requirements, said Michael Eastman, who advises contractors as a managing counsel at NT Lakis in Washington.
“We have companies with very generous leave policies, some of whom even have unlimited sick leave, who will now need to create processes to track accrual of leave,” Eastman said.
Large, multistate contractors are also wrestling with the scenario in which only a segment of their workforce is covered by the rule.
“The unspoken subtext here with the regulation is that it becomes so difficult to overlay onto existing policies, or to apply precisely, that many contractors throw up their hands and do more than technically they need to,” Murphy said.
As more contracts begin to get awarded with the new requirements in place, the number of employers who would find relief from any presidential repeal will dwindle. But that won’t stop Chvotkin and the PSC from asking for revisions.
“We’re continuing to talk to government officials,” Chvotkin said. “As more officials are designated and take office, the higher I think this will rise” as a priority.
One obstacle Chvotkin and other business groups may face is the need to convince the administration that the sick leave order is unique from the paid family leave plan pushed by influential White House adviser, and President Trump’s daughter, Ivanka Trump.
As weeks of silence on the matter continue inside the government, the realization is settling in among some contractors that the paid sick leave requirements will become entrenched.
Read more from Bloomberg BNA.
By Dave Johnson
Some states have cut worker safety protections and made it difficult for unions to do their job. They say they do this to attract jobs and businesses. What they are really doing is hurting human beings in their race to the bottom, and the nation is following their lead.
Lowering Wage And Safety Standards
What happens when a state lowers wage and safety standards and keeps unions out to attract jobs? Peter Waldman at Bloomberg BusinessWeek took a look at Alabama, where auto parts makers like Ajin USA and the Matcor-Matsu Group Inc. have set up shop to service the automakers like Kia and Hyundai in the state. The results are are even worse than you might imagine.
Waldman profiles workers like 20-year-old Regina Elsea, who worked 12-hour shifts for Ajin at $8.75 an hour, seven days a week, in the hopes of moving from temporary to full time status. What happened instead? She was pinned against a steel dashboard frame by an out-of-control robot, and killed.
He also profiles Cordney Crutcher, who lost his left pinkie when a hole puncher misfired and caught him off guard at the end of a 12-hour shift.
He was put on a press that had been acting up all day. It worked fine until he was 10 parts away from finishing, and then a cast-iron hole puncher failed to deploy. Crutcher didn’t realize it. Suddenly the puncher fired and snapped on his finger. “I saw my meat sticking out of the bottom of my glove,” he says.
Why do workers face such dangerous conditions? Waldman explains.
Parts suppliers in the American South compete for low-margin orders against suppliers in Mexico and Asia. They promise delivery schedules they can’t possibly meet and face ruinous penalties if they fall short. Employees work ungodly hours, six or seven days a week, for months on end. Pay is low, turnover is high, training is scant, and of course, if the injured can find a lawyer in a state where “tort reform” has limited access to the courts, how much good does a bit of money do? ‘I’d rather have my arm back any day,’ Allen says.
You get the idea. When governments remove regulations and protections to be “pro business” the result is that the people the government is supposed to be watching out for are endangered, and they take more risks in exchange for lower pay. This is what happens when a government becomes corrupted and no longer operates as the agent of the people, and instead operates to facilitate profit for a few.
Note that the Trump administration is working to cut protections and regulations nationally, including cutting out the OSHA record-keeping rule. Interfaith Worker Justice warns that the Labor Department is cutting job and safety training programs “that will affect the most vulnerable Americans.”
Who Really Benefits?
When states become corrupted and cut protections and regulations the regular people in those states certainly do not benefit. They end up with low-pay crap jobs and the state uses its power to fight their ability to band together in unions.
When states throw in tax cuts it means the people in the states don’t get good schools, infrastructure, services, either.
But wait, there’s more. When a company moves to such states the working people where the companies and jobs moved from lose their jobs, and everyone else in those states faces wage pressure as a result. And those communities lose their revenue base so their schools, infrastructure, services suffer as well.
And who is to say that yet another state won’t offer even lower pay and fewer protections to ‘compete” for the businesses? It is a race to the bottom.
If you look at our country as a whole instead of as competing states, we all end up poorer in aggregate, with lower pay, worse schools, etc. If the first state had jobs at $20 an hour, but now the second state has those jobs at $10 an hour, that’s a loss of $10 an hour to the working people of the country. The people who get the jobs are poorer because they are paid less, and the people where the jobs were are poorer, too.
As the tax base declines, and schools, infrastructure and the rest suffer the longer-term ability for business to prosper goes away. In other words, after we eat the seed corn of our prosperity, we starve.
Or, to put it another way, look at what has happened to our country in the years since the late 1970s deregulation and “tax revolution.”
“I’ll Be Gone, You’ll Be Gone”
Who benefits? Who actually gets the money that is cut from budgets and wages and protections as states compete for businesses and jobs? Who gets that $10 an hour difference from the above example?
People say, if a business (or state in this example) harms its ability to do well in the future, that’s not very smart. This is because they look at the business as some kind of sentient entity that makes decisions.
But people make decisions, not companies. And people might not be making decisions to benefit their companies, they might be making decisions to benefit themselves.
“IBGYBG,” or “I’ll be gone, you’ll be gone” is an actual thing. I’ve gotten my profit, commission, payoff, whatever, and it doesn’t matter what follows.
The money from selling out our future (and corrupting governments by paying off politicians to sell out our future) has gone to the executives and investors in those businesses at the time. These individuals sell out everyone else for cash they pocket today. They sell out the future of the companies they are fleecing and the communities they drain, so they can pocket the assets and seed corn for themselves today.
What To Do?
The first thing to do is understand that arguments for cutting regulations, taxes, and protections are self-serving arguments designed to enrich a few people at the time, at the expense of the rest of us and our future. After they get rich they’ll be gone and the rest of us are left to try to pick up the pieces. Or, to put it another way, look around and see what has happened to us.
The next thing to do is refresh our understanding of democracy and government. We the People are supposed to be in charge here and our government is supposed to exist to make our lives better. Government is us, decision-making by We the People. People who want “smaller” or less government” are really saying they want less decision-making by We the People. When they say government is “burdensome” or “inefficient” or “government gets in the way” they are saying democracy and decision-making by We the People is hindering their ability to get more for themselves.
Finally, once you understand these things, get active and demand that taxes and regulations and protections and government be restored so we can all share together in the prosperity that democracy brings us – all of us together, collectively – over the longer term. We have to stop the ability of a few wealthy people and their corporations to pay governments to do things that benefit them at the expense of the rest of us.
This includes calling your representative and senators and telling them you demand a restoration of democracy. What will restore democracy? As unpopular as it may sound, it’s taxes, regulations and protections. Because these provide the oversight, transparency and accountability that keep our workplaces safe, and our democratic government alive.
Read more from OurFuture.