Department of Labor Archives - Shopfloor

Summer Surprise—The 2013 Spring Regulatory Agenda Finally Released

By | Labor Unions, Regulations | No Comments

“I’m just glad we don’t know what’s going to happen.” – Said no one ever.

Uncertainty is a bad thing. This can be universally agreed upon – and manufacturers have been in limbo for months waiting for the Department of Labor to announce its regulation agenda. Unfortunately, with the oddly timed summer release of its “Spring 2013 Unified Regulatory Agenda” — a forecast of the Administration’s timetable on when certain regulations will be proposed or finalized, manufacturers are still on hold.  We were hopeful that, given the delays, manufacturers would see improvements to the agenda – not retreads and delays of bad policy that will hurt economic growth. Sadly, that isn’t the case. Timetables have slipped further into the future, creating more uncertainty for employers who are not sure what to expect, when to expect it and what the impact financially will be.

Examples of rules being further kicked down the road within the world of labor and employment are OSHA’s Injury Illness Prevention Program (I2P2), OSHA’s Silica Rule, and the Persuader Rule.  According to previous agendas, I2P2 should have been in the notice and comment period by now, yet OSHA has yet to convene a small business panel to review a draft rule and now, the notice of proposed rule-making is scheduled for January.

We have been anticipating OSHA’s silica rule since the rule went to OMB for review in February of 2011.  We are told we can expect something “anytime,” but what does that really mean?  The industries affected by this rule continue to wait and are unable to accurately plan.

The Persuader Rule’s comment period closed in the fall of 2011 and according to the last Agenda, we should have seen a final rule in April, but again, employers must wait until November (or longer) to see if they way in which they have received from their lawyers or consultants for decades will now be radically altered and ultimately disclosed to the Department of Labor and the public.

These are just a few examples of what DOL and other agencies have on their agendas, but no matter what the proposed regulation is, the fact is employers are still in limbo as to what they are facing in the future when it comes to changing how they do business and at what cost.

It’s Secretary of Labor, Not Secretary FOR Labor

By | Labor Unions | No Comments

Washington Examiner editorial, “It’s time for Labor Secretary Solis to go,” following her inflammatory remarks at last weekend’s meeting of the Democratic National Committee:

Nothing wrong with Solis speaking at the DNC, of course, as she is a former Democratic representative from a California district. The problem is that her DNC remarks made clear that Solis labors under the flawed assumption that she represents only the steadily dwindling sliver of the American work force that is still unionized. As a result, Solis is leaving the other 90 percent of American workers high and dry.

Here’s the key passage from Solis’ remarks at the DNC on public employee protests in Wisconsin and Ohio that points to her fractured understanding of whom she represents: “The fight is on. We work together. We help those embattled states right now where public employees are under assault.” She called members of the protesting public employee unions “our brothers and sisters” and pledged to help them against Republican Govs. Scott Walker of Wisconsin and John Kasich of Ohio. With those remarks, Solis effectively put the federal government in the de facto position of aiding protesters opposing governors doing what they were elected to do less than five months ago.

The Examiner also publishes a special report today with two commentaries on organized labor.

UPDATE (4:55 p.m.): More labor agitation from the Secretary, reported by The Examiner’s Byron York.

Labor Secretary Hilda Solis took part in a Communications Workers of America conference call Wednesday night in which she expressed her strong support for unions fighting Wisconsin Gov. Scott Walker’s proposed budget.  “Let’s keep fighting,” Solis told CWA president Larry Cohen and thousands of CWA shop stewards listening to the call…

On more than one occasion, Solis referred to herself as part of the pro-union, anti-Walker cause.  “I say let’s keep fighting,” Solis said, “let’s stand up for all workers, and let’s mobilize and do what we do best, and that is to make sure that the American public understands that union rights are no different from human rights.”

The audio is here, courtesy of the Communications Workers of America, which trumpeted the call here.

Secretary Solis, Tell Us About the Contingency Attorneys

By | Briefly Legal, Human Resources | No Comments

Labor Secretary Hilda Solis testifies Wednesday before the House Education and Workforce Committee, a hearing entitled “Policies and Priorities at the U.S. Department of Labor.”

One useful line of inquiry might pursue the Department of Labor’s deal with the American Bar Association to farm out employee complaints that come to the Department to contingency-fee attorneys. Questions might include:

  • President Obama has left in force President Bush’s Executive Order No. 13433, “Protecting American Taxpayers From Payment of Contingency Fees.” That order specified that “no agency shall enter into a contingency fee agreement for legal or expert witness services.” Can you please explain to me why this new arrangement does not violate that executive order. Should the president repeal that executive order?
  • Explain, if you would, how exactly the attorneys are selected for this referral service. What percentage fee of the awards will the attorneys be working for?  Please provide me a list of the attorneys who are serving in this capacity. Do you intend for their arrangements with clients to be subject to the Freedom of Information Act?
  • How does it improve the business climate or encourage employers to hire new workers if the Department of Labor refers lawsuits against business to outside, contingency-fee attorneys? Can you understand why employers might be upset that your agency is serving as a referral service for trial lawyers?

We wrote about the White House’s embrace of this trial lawyer referral service last week in two posts, “What about the Executive Order Barring Contingency Fee Lawyers?” and “Department of Labor: Working the Phones for Contingency Lawyers.”

The President’s Budget: Creating Jobs Through Increased Enforcement?

By | Human Resources, Regulations | No Comments

President Obama has made it very clear that he wishes to work with employers to help ensure they have an environment to creating jobs. We appreciate this commitment and look forward to see how his recent Executive Order on federal rulemaking is implemented. The Obama Administration has sent many signals that they’re going to be carefully reviewing regulations that may hinder job creation.

However, as analysis of the President’s budget continues it appears that the Administration is sending mixed signals. Specifically, the Department of Labor’s budget request does trim $1.1 billion dollars for FY 2012, it would still increase spending for agencies that regulate employers. Looking specifically at OSHA, there are increases for “safety and health standards” for the agency to develop new rules and spending on whistleblower programs. We should note that this request does slightly increase funding for compliance assistance programs, but the agency has proposed rules that would gut many employer outreach efforts like the on-site consultation program. A half a step forward, a full step back.

Looking beyond OSHA, the President’s budget would increase spending to “combat” employee misclassification. The Administration has often stated that they perceive a problem a widespread misclassification of employees as independent contractors by employers to skirt obligations associated with employees. The President’s request would increase spending for the Wage and Hour Division of the Department of Labor to beef up federal employees to investigate misclassification. This comes on the heels of the Department’s fall regulatory agenda that indicates that the Department is still in the process of developing “Right to Know” regulations that would likely impose a new burden on employers to perform extensive employee audits of each worker – independent contractor and employee alike.

Also troubling is the Department’s proposal to lure states into launching paid-leave programs. The Department is looking to increase spending to encourage states to start programs that would create new entitlements, which inevitably lead further funding down the road.

If the President is serious about assisting employers to create jobs, the Administration needs to do more than simply sign executive orders calling for a review of regulations; he needs to focus on supporting an environment that allows employers to create jobs.

Joe Trauger is the NAM’s vice president for human resources policy.

Employees Continue to Not Join Labor Unions

By | Human Resources, Labor Unions | One Comment

This morning the Department of Labor’s Bureau of Labor Statistics released new figures for union membership rates in 2010. Their figures show that union membership continued its downward trend as the number of union members dropped to 14.7 million, down from 15.3 million in 2009. The overall “rate” of unionization also declined as only 11.9 percent of all workers were members of a labor union in 2010.

Last year’s figures showed that for the first time more union members were employed by government in the public sector than by private sector employers. This dynamic continued in 2010 as 52 percent of all union members were public sector employees.

So what does this mean?

  • It’s clear that fewer and fewer American workers feel the need to join labor unions. These figures help to explain why labor leaders have been so adamant in their efforts to change U.S. labor law in order to give union organizers greater influence. In previous years these efforts were marked by union support for legislation like “card check” but union leaders and their allies in Washington are now more focused on using executive branch actions like regulations and NLRB cases to change the rules.
  • In recent years, we’ve seen Big Labor turn increasingly leftward, promoting a “progressive” political and social agenda that has little do with jobs creation and economic growth. By and large, that’s a result of the public sector unions and their leadership trained in government and politics, not on the factory floor. The continuing rise in public sector unions means that fewer union leaders will be engaged with the private sector (manufacturing) economy, which ultimately pays for all the government union jobs. Union leaders have been seeking numerous opportunities to expand the size of government – which would ultimately lead to more public sector employees, which in turn would boost union members.

Policymakers should focus their efforts on developing policies that enable employers to create jobs, rather than seeking ways to prop up union membership by changing U.S. labor laws.

Labor Department Regulatory Agenda is Not a Growth Agenda

By | General, Human Resources, Labor Unions, Regulations | One Comment

President Barack Obama met with business leaders last week to discuss “a shared agenda focused on moving our economy forward that not only continues to grow the economy, but also ensures America is competing and leading in the world.” He then later met with labor union leaders in which the President “reinforced the essential role the union movement plays in growing the economy, creating good jobs on Main Street, and keeping America competitive.”

It appears that the President is rightfully focused on job creation and enhancing our nation’s economic competitiveness.

We looked forward to going through the Department of Labor’s Fall 2010 regulatory agenda (on the last day of the season!) today to learn how the Labor Department was going to achieve the goal of achieving “Good Jobs for Everyone.” Now that’s it’s here, most of what we see is focused on increasing regulations on employers and achieving goals that were unable to be done legislatively.

Specifically the agenda includes:

  • A new regulatory proposal that would require companies to disclose to both independent contractors and employees alike a description of their status as either an employee or independent contractor. While few details are offered on this expected regulatory endeavor it appears to place new requirements on employers to disseminate information to employees. This regulation appears to be very similar to legislation, the Employee Misclassification Prevention Act, offered by Sen. Sherrod Brown (D-OH) and Rep. Lynn Woolsey (D-CA).
  • Information on proposals expected from the Office of Labor Management Standards that would require employers to disclose the details of when they engage in “persuader activities” and plans to “reconsider” (i.e. limit) the types of efforts engaged by employers to comply with labor laws that are not currently required to be disclosed. Note: the administration previously removed a set of disclosure requirements for union organizations citing the burden they posed for labor leaders to comply.
  • An update on OSHA’s efforts to mandate an expansive safety and health program standard through what has been called the “Injury and Illness Prevention Program”
  • An indication that OSHA intends to finalizing their proposed rulemaking to allow citations to be issued for certain small businesses that wish to work proactively with the agency to ensure that they are compliant with existing OSHA standards and regulations – a move that would deter participation in a very effective program.

As we’ve stated here numerous times: more regulations from the Executive Branch produce a lot of uncertainty for employers, to whom unnecessary costs represent an obstacle to economic growth.

Labor Secretary Solis Begrudges the Progress Toward Safety!

By | Human Resources, Labor Unions | One Comment

The Department of Labor’s Bureau of Labor Statistics released data this week that show that workplace injuries and illnesses continued to drop last year. Last year saw some 400,000 fewer workplace injuries than the year before. We know many folks may say that this decrease may be the result of continued low employment that’s a result of our current economic situation (and failed federal policies that don’t support job growth!) But, the reality is the overall rate of injuries has also dropped from 3.9 cases per 100 full time workers to 3.6. This number shows that the ratio of individuals getting hurt at work is declining.

Now, there are many reasons for this improvement, but the fact is, these numbers have been steadily improving for quite some time now, and the trend is largely due to employers continuing to find new ways to make workplaces safer.

One would think that the Secretary of Labor would acknowledge this greater commitment to safety demonstrated by both private sector employers AND their employees. Unfortunately, in her statement accompanying the release, Secretary Solis leaves the impression she thinks that employers are juking the stats.

Complete and accurate workplace injury records can serve as the basis for employer programs to investigate injuries and prevent future occurrences. Most employers understand this and do their best to prevent worker injuries, but some do not. … We are concerned about the widespread existence of programs that discourage workers from reporting injuries, and we will continue to issue citations and penalties to employers that intentionally under-report workplace injuries.”

The NAM strongly supports the use of sound science and data in the development of regulations and standards (in fact it’s in our official policy positions), and the Department certainty should have the most reliable data possible to help agency leaders develop better policies.

We are also well aware that the agency has engaged in an expensive and time-consuming effort using OSHA resources to ferret out employers who have not kept their OSHA logs properly. While we look to the results of these programs, it just seems irresponsible to suggest that workplace safety improvements are not the product of safe work practices but the result of rigged data.

Ultimately, Solis and the Labor Department have gone out of their way to use a news release noting improvements in safety to suggest employers aren’t committed to safety. It’s ideology trumping reality.

Fact Check: Is There A Small Business Exemption in the Paycheck Fairness Act?

By | Human Resources, Labor Unions | One Comment

Senate Majority Leader Harry Reid (D-NV) has filed cloture on the long pending Paycheck Fairness Act (S.3772) which queues the bill up for possible action during the lame-duck session of Congress. The labor unions, trial lawyers and other activists are going to find it hard to make a persuasive case for legislation that will expose employers to the threat of unlimited damages and increase litigation costs while doing little to actually prevent instances of illegal discrimination. Many of these groups and Members of Congress try to diminish the economic impact, asserting that small businesses are exempt from the bill. Recently Rep. Chellie Pingree (D-ME) claimed: “It is also important to say that this only applies to big business, this does not apply to the sandwich shop around the corner.”

Really? Really? Well let’s take a look…

The legislation’s Section 11 is in fact named: “Small Business Assistance”. This provision states that the bill would go in effect 6 months after the date of enactment. Additionally the bill directs the Department of Labor and the EEOC to provide small businesses “technical” assistance to comply with the new law as well as reiterating that the bill would apply to employers covered by the Fair Labor Standards Act (FLSA).

Well who is covered by the FLSA? For this we turn to Department of Labor’s Wage and Hour Division, which enforces that law. And, according to the Labor Department “almost every employee working in the United States” is covered by the FLSA.” Well then, who’s exempted?

Employers that have fewer than two employees and do less than $500,000 a year in business would not be covered. That really is a SMALL business. Read More

Labor Day: Competitiveness IS Pro-Worker

By | Economy, Human Resources, Labor Unions | No Comments

August unemployment figures will be released Friday, with the expected 9.5 or 9.6 percent national jobless rate punctuating the importance of jobs and the economy just in time for the Labor Day holiday. Yet, in attempting to shape the Labor Day news coverage, the Obama Administration is promoting its successes (such as they are) in having government direct economic activity, while organized labor is just calling for more political activism.

They’re both missing the mark: What’s needed to encourage jobs growth are policies that make the United States more globally competitive while ending the uncertainty that keeps employers from hiring more workers. The NAM’s recent “Manufacturing Strategy for Jobs and a Competitive America” laid out those necessary policies, and our new “Labor Day 2010” report put them in context of employment and the economy. These are substantive documents, if we do say so ourselves.

Labor Secretary Hilda Solis issued a statement via video that talks about jobs, but mostly offers examples of government intervention rather than a clear strategy for job creation. The statement will be even more underwhelming when the Bureau of Labor statistics announces the unemployment tomorrow.

Meanwhile, labor leaders are using the week to issue a political call to action, urging union members to mobilize in advance of the midterm elections. Union bosses are rightfully nervous that their allies in Washington  – those who have embraced labor’s anti-competitive program — are facing serious threats to their re-elections. Materials distributed by the AFL-CIO again make vague statements of support for anti-worker proposals like the Employee Free Choice Act.

We hope that all policymakers and candidates take the opportunity this Labor Day weekend to not only read the NAM’s Labor Day Report but also declare their opposition to card check legislation in any form. For jobs and the American worker, it’s time to focus on competitiveness, not proposals that would only worsen employer-employee relations.

Contradictions: Labor Secretary Promotes Job Killing Legislation

By | Labor Unions | No Comments

In recognizing the 75th anniversary of the National Labor Relations Act at the Huffington Post, Labor Secretary Hilda Solis gave a plug for organized labor’s highest priority: the Employee Free Choice Act. It’s troubling to see the Secretary of Labor — whose mission is to administer our nation’s employment laws and foster an environment that supports employers’ jobs creation – advocating a proposal that will kill hundreds of thousands of American jobs.

The Secretary writes that she and President Obama support the proposal “so workers can form unions if they choose to without fear or pressure.” But this misguided legislation does just the opposite. By effectively eliminating secret ballot union elections the legislation would only expose employees to greater pressure and intimidation when making the important decisions about forming a union.

We observe that the Secretary uses the popular political cliché of “leveling the playing field.” However, this legislation would acutely tilt the careful balance of fairness upon which our labor laws are based.

We do agree with one point that the Secretary makes: “As we work together to overcome our own Great Recession we need strategies that create Good Jobs.” However, none of the proposals she outlines would either create or help retain jobs.