Michael Hiltzik of the Los Angeles Times writes here about the defeat of one of President Biden’s most important nominees for the U.S. Labor Department and why it is very bad news indeed for American workers.
David Weil withdrew his name as head of the Labor Department’s Wage and Hour Division on April 7 when it became clear that he would never be confirmed. He was nominated almost a year earlier. Every Republican and three Democratic Senators opposed him: Joe Manchin, Kyrsten Sinema, and Mark Kelly, perhaps hoping to placate conservative voters in Arizona before the November election.
Hiltzik writes:
Having earlier served in the job during the Obama administration, Weil came under ferocious attack by business interests and Republicans from the start, because they knew of his commitment to enforcing the labor laws on the books and the court rulings that have upheld them...
Moreover, Weil’s loss was a blow for Biden, who is certainly the most pro-labor president in decades, perhaps ever.
Weil was superbly qualified to resume leadership of the Wage and Hour Division. He’s an expert in labor law who has served as a professor and dean of the Heller School for Social Policy and Management at Brandeis University, with a sharp eye for the multitude of ways that employers can cheat and abuse their employees, especially lower-income workers…
Weil’s 2014 book The Fissured Workplace examined the many ways that employers had been abandoning their responsibilities for workers.
As Weil explained to the Senate Committee on Health, Education, Labor and Pensions (HELP) during his July 15 confirmation hearing, his aim as administrator, as it was in 2014-2017, would be “strategic enforcement” of labor standards “to make sure we are targeting industries and employers who are really violating the law and who erode those kinds of standards,” while reaching out to employers to make sure they understand their responsibilities.
To Republicans and their patrons in the business community, however, any enforcement of labor law is too much.
They accused him of an “open bias against small business.”
Their evidence was his advocacy of such initiatives as the expansion of overtime rights to more than 4.2 million workers who had been treated as exempt from overtime pay and tightening the classification of employees as independent contractors — the key to the business model of gig firms such as Uber and Lyft.
Weil also expanded the definition of joint employers to impose responsibilities for workplace standards on big companies that sought to shed them through subcontracting and franchise arrangements.
It should be clear that these regulations would all improve pay and working conditions for workers. But they would cost employers, so business painted Weil as the enemy. The posturing by Republican committee members sometimes sounded as though they had received their talking points intravenously from the International Franchise Assn., one of Weil’s principal critics….
As Weil observes, the labor market is one of unequal power in which employers dominate. This observation is not new, leftist or extremist. In the landmark 1937 Supreme Court case known as Parrish, Chief Justice Charles Evans Hughes (reaching back to an 1898 decision upholding safety rules for mine workers) noted that fear of being fired often forces workers to bow to working conditions they know to be unfair or detrimental to their health.
“The proprietors lay down the rules,” the earlier decision stated, “and the laborers are practically constrained to obey them.” Parrish, which upheld a Washington state minimum wage law, marked a sea change in the court’s approach to labor law. Hughes, by the way, had been placed on the Court by Herbert Hoover.
Weil traces an arc in government-protected worker rights beginning with enactment of the National Labor Relations Act in 1935 and especially the Fair Labor Standards Act in 1938. The latter installed an expansive definition of “employment,” and therefore of worker rights and employer responsibilities, at the heart of federal labor law.
The FLSA made clear, he says, that “government plays a critical role saying, these are baseline rules of the game that can be built upon, whether through unionization or more progressive employers who understand the benefits of treating their workers well” — a foundation created by standards such as the minimum wage and an understanding on when the paid workday starts and stops.
Courts began to narrow the FLSA’s reach within a few years, followed by the Republican Congress, which enacted the anti-union Taft-Hartley Act of 1947 over a veto by Democratic President Harry Truman.
The 1970s brought about more erosion in the basic understanding of worker rights and employer responsibilities.
“More and more workers were in situations where they were seeing daily violations of these basic rules, from being told you punch in for your time only after you’ve prepared your work station or you punch out before you do clean-up, and you get paid at straight time, not overtime, even after 40 hours” a week, Weil observes.
“If someone had the guts to stand up and say, ‘That’s not right,’ they were fired, in direct violation of the law,” Weil says. “The persistence of those practices create an environment where no one wants to raise their head up and talk about other problems that occur because they see these violations of the most basic rights that workers are supposed to have. Forget about the risk of saying you see a health and safety problem or discrimination, for decades the riskiest thing you could do in an American workplace is to say, ‘I want to have a union here.’
“To me,” he says, “those rights are not exercised if the basic rights are being systematically violated.”
In “The Fissured Workplace,” Weil tracked how employers had been offloading their employees to labor subcontractors, temp agencies and franchisees and redesignating one-time members of their payrolls as independent contractors.
“In 1960,” he wrote, “most hotel employees worked for the brand that appeared over the hotel entrance. Today, more than 80% of staff are employed by hotel franchisees and supervised by separate management companies.”
Not long after his book appeared, the gig platforms such as Uber and Lyft emerged. Weil recognized them as new iterations of an old story.
“When the platform model came out with this whole false narrative that they were providing ‘flexibility’ without all that messy employment stuff, to me the platforms were just another form of fissuring,” Weil says. “Their idea was to control the brand, and completely divorce themselves from those responsibilities.”
In a Los Angeles Times op-ed in 2019, when Uber and Lyft were fighting a California law that would designate their drivers as employees, Weil acknowledged that some companies operated in a gray area where their workers sometimes acted like employees and sometimes like independent contractors.
“Uber and Lyft are not among those close, gray-area cases,” he wrote. “Their status as employers is really quite clear.” (Uber, Lyft and other gig companies spent immense sums to pass Proposition 22, which exempted them from the California law — though the law has been put on hold by a state judge.)
Weil’s position earned him the enmity of the gig companies. They opposed his confirmation through their now-defunct app-based Work Alliance, which tweeted during his Senate hearing that he supported “an outdated workforce model” that was shunned by gig workers who “love their flexibility and independence,” which the companies asserted Weil’s policies would “take away.”
In contrast to the gig firms’ efforts to create a hybrid employment standard that would only make permanent their abusive business models while denying workers basic employment protection, Weil has advocated extending workplace standards to beyond those who are classified as employees.
In a 2020 paper, Weil and labor law expert Tanya Goldman proposed a framework of concentric circles in which basic protections such as freedom from discrimination and retaliation, and the guarantee of safe and healthful working conditions and a minimum wage would be linked to all work, rather than to legal definitions of employment.
Further protections, including the right to overtime pay, unionization and workers’ compensation and unemployment insurance, would belong to a second circle of workers who would be presumed to hold employment status unless their employers could make a hard-and-fast case that they were independent contractors.
A third circle would encompass indisputably independent workers. They still would be entitled to unemployment and workers’ compensation, and could arrange on their own for other benefits such as retirement funding.
The virtue of this concept is that it divorces essential protections from pettifogging debates over the definition of “employee.” Weil acknowledges that some of these changes would require congressional action.
There lies the rub. Weil’s nomination foundered in large part on Senate procedure. The narrowness of the Democratic majority forced delays in a floor vote on his appointment that lasted into this year, when Biden was required to renominate him. By then, the business community had built up a head of steam against his confirmation.
When it became clear that no Republican would vote for him, nor would three Democrats, Weil withdrew his nomination.
“The principal reason they didn’t want me in this role,” Weil says, “is that I had a record of enforcing the law.”
If the Biden administration truly supports labor, it should support building accountability into the federal charter school program. Charter schools are notoriously anti-union. They take advantage of the youthful idealism of beginning teachers. Their labor practices are, in some cases, draconian. Public schools have provided teachers with middle class jobs, benefits and a pension, up until recently that is. One product of the privatization has been the lower of salaries and benefits for teachers in red states. If Biden cares about labor, he should make sure the charter lobby does not write the revision of the law. Supporting labor must be more than a talking point. It requires action.
cx: the lowering of salaries and benefits for teachers in red states.
And yet, a high percentage of blue collar workers will vote for Republicans. They will willingly vote against their own financial well-being because of culture war issues.
Why is this? Why do working people in the U.S. consistently vote for those who vehemently oppose the rights of working people? It’s insane.
Yes, I know: ignorance and the three g’s (god, guns, and gays).
And don’t get me started on Manchin and Sinema. My thoughts about those two would melt diamond.
White fragility is prime but status insecurity goes beyond race. One of the more popular Facebook memes on a Union Trade page is the College Grad living in moms basement. Having his electricity disconnected by a Union Electrician . Whether the meme reflects reality for the vast majority of Blue collar workers or not . It is a full time job for Union activists explaining how that college grad is also a worker. That they are laughing as their own standard of living is in decline.
Horrifying, Joel!
Divide working people among themselves. Tell them that the enemy is some also-poor Other (they’re taking your jobs).
But at some point, the greed of the bosses hurts everyone else so much that the system breaks. The rich keep pushing their toy until the wheels fall off entirely.
If we want to keep dividing the working class, or the middle class, we should keep bleating about “white fragility.”
Who has been bleating about “white fragility” other than the far-right?
So, the vote has already occurred, but I suppose that one could argue that the signing onto the majority opinion resulting from that vote is the “vote” that matters.
FLERP!
You are absolutely right .
“tell the poorest White man he is better than the best Black man and he will empty his pockets for you.”
Nobody ever accused that guy of being a woke snowflake.
So lets do away with the PC and call it what it is. Race has been used to divide the working class for much of our history. “Its the racism stupid “
Right, Joel.
Racism is the issue that has brought white working class voters to the GOP and middle class voters too.
Racism.
They vote against their self-interest because of their racism.
Diane, if you don’t think the left bleats about white fragility—the term was invented on the left and is a staple of every DEI PowerPoint—then you’re very much out of touch.
I agree that race is used to divide people, Joel. Often unwittingly!
The left just talks white fragility; the right walks it. LOL.
Great piece, just published today, on CRT: https://shuddhashar.com/critical-race-theory-the-facts-and-irony-for-white-people/#comment-601
As I posted on another thread, I believe the working class people I know are victims of misinformation concerning race and class. xenophobia is a powerful motivation, and there are many people who would never distrust an outsider they know, but never trust an outsider they do not know.
But they don’t bother to “know” the outsiders whom they trust. The working-class people of Kentucky vote for McConnell, who wants to cut their Social Security and Medicare; the working-class people of West Virginia vote for Manchin, who derails a slew of programs that will directly benefit them. It’s just idiotic and ignorant.
The last thing the totally corrupt in every way, racist and fascist MAGA GOP wants is someone that enforces the law. What they want, is someone that enforces Traitor Trump’s BIG LIE, and throw Hillary and Biden in prison or just have them killed like Putin does to anyone that dares to stand up to him or not do what he wants. without a trial.
Didn’t Traitor Trump call Putin a genius for invading Ukraine where Putin’s barbarian Russian and mercenary armies are raping women, killing or kidnapping children, targeting hospitals and totally destroying cities.
This is the world MAGA wants. MAGA wants a world where one strong man makes all the laws without question and crushes anyone that isn’t a member of the MAGA cult crime family.
Sun Tzu said the enemy of my enemy is my friend. Well, Joe Manchin, Kyrsten Sinema, and Mark Kelly may not be Republicans but they are siding with the MAGA mob so that makes them our enemies, too.
Every day ticks by and every day there are more reasons why voting in 2022 is vital as if our lives depend on it because our lives do depend on voting out the MAGA mob and anyone that sides with them.
That wasn’t Sun Tzu. Something similar appears in an ancient Sanskrit text, but the popular phrase as we know it in the West originated in the 19th century. It became common during the Second World War, when it described the unlikely bedfellows that made up the Allies–Roosevelt, Stalin, Churchill.
To suggest that Biden is perhaps the most pro-labor POTUS ever is absolutely ludicrous! A pro-labor POTUS would be fighting for a much higher minimum wage, would push legislation making it much easier to organize workers, would vigorously support for Medicare for All, demand passage of the Green New Deal, and cancel all student loan debt. Most pundits define labor issues far too narrowly.
By stalling the Biden agenda, Manchin and Sinema are practically handing the midterms to the Republicans. You think things are bad for working people right now? Wait until the Republicans control the House, the Senate, the Supreme Court, and the presidency.
If Biden didn’t have the Manchin/Sinema Nullification Front working against him, he would be another FDR.
If not those two there would be others. Not many but enough.
And he would wave his magic wand to do all that.
James Eales,
If Biden had the support of renegades Manchin and Sinema, he could have won passage of the PRO Act, which was hugely important for labor unions. Biden can’t pass legislation without the Senate.
Same thing for the DINOS who block Biden’s strongly pro-labor nominees. If the GOP wins either house, forget any gains for labor.
Actually Manchin signed onto the Pro Act . Warner took his place as obstructionist on that issue. . Of course Manchin can co sponsor all day every day, knowing he would not vote to kill the “Kill Switch”
The Search for Intelligent Life in the Republican Party continues despite lack of results over decades. Story inside.
In other news, the Supreme Court just voted to overturn Rowe v. Wade.
cx: Roe v. Wade
Tell us again, certain commenters, how it makes no difference whether we have Democrat or Republican presidents (who have such power as the ability to nominate federal judges and Supreme Court justices).
https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
And so it begins, the epoch of The Reversal.
The pending decision to overturn Roe v Wade makes me sick and angry. Trump wins. When Republicans rant about their devotion to “freedom” and “liberty,” ask them about a woman’s right to control her body. Ask whether she is free to choose to abort the baby of a rapist.
The opinion, which I posted above, goes even further, questioning the traditional reading of a right to privacy into the due process clause of the Fourteenth Amendment and deriving such a right to privacy from this and other Amendments (the First, Fourth, Fifth, and Ninth). This opens the possibility that this activist right-wing court will in the future overturn other decisions that relied upon a due process right to privacy, including ones that overturned sodomy laws and allowed interracial and gay marriage. Here, quoting from the opinion: “Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, WHICH IS ALSO NOT MENTIONED.” The caps, for emphasis are mine.
First they came for women’s freedom over their own bodies. Then, . . .
This is how a fascist state works over time to throw a filter of legal justification over absolutist command and control employing coercion (the monopoly on violence of the state).
Corporations are people. There is no right to privacy. What’s next, the state cannot interfere with the corporation’s property rights in its employees? The devil can quote scripture AND precedent.
“Equal Justice Under the Law” reads the inscription above the west entrance to the Supreme Court. This decision makes a mockery of that. Rich women will travel to get abortions. The poor will not have that option.
Dear Extreme Court “Justices”: Since this decision hasn’t been officially published yet, might I suggest a subtitle? How about “Minority Rich, White Male Rule in America: a Prehistory”
Here is the draft opinion, published by Politico:
https://www.politico.com/f/?id=00000180-874f-dd36-a38c-c74f98520000
Not voted. Vote hasn’t happened yet. But it looks certain.
From Politico:
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
From uscourts.gov:
After the votes have been tallied, the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court.
According to uscourts, the vote occurs in conference before the opinions are written. Afterward, justices can change their minds and choose not to sign onto an opinion.
And so much for caveman’s saying that this was “settled law” and for Barrett saying that we don’t live under “the law of Amy.”
So, the vote has already occurred, but I suppose that one could argue that the signing onto the majority opinion resulting from that vote is the “vote” that matters.
Votes aren’t really votes until they’re final. Sometimes it’s clear at the conference that the justices are set in their views. Sometimes it’s more tentative. Votes are sometimes changed after the conference when the draft opinions are circulated. I never clerked for SCOTUS, but I did clerk for a Court of Appeals judge, and I believe the processes are the same in that respect.
Bob,
I think the only big question will be whether the very conservative (but not neo-fascist) John Roberts votes with the 5 John Birch Society far right Justices who now control the court thanks to people like the very wise folks who lectured to us about how if we just vote against Democrats and help empower the now far right Republican party, a progressive future would arise.
Even if Robert’s joins the three liberal justices, the remaining five zealots will overturn Ror. I seem to recall that Trump’s nominees pledged not to overturn established precedent like Roe. Kavanaugh promised Collins. They lied.
It doesn’t matter which way Roberts goes.
I am going to assume that the forces that consider abortion murder are buying larger collection plates for churches. After all, if people are the focus of your religion, if life is inviolate, then those who hold this belief should be ready to walk their beliefs with their pocketbooks.
Or will we go back to the orphan trains, the 19th century phenomenon that sent thousands to rural America? Will violent crime, slumping since the Roe decision, start to rise in 20 years?
Roy-
Thanks for being the single person in the thread to tell the truth.
Fighting theocracy is American, it is not anti-Catholic. The cornerstone of conservative religion is devaluation of women. The next target after Roe is birth control. The longstanding aim and zeal of the Catholic Church has been the subjugation of women.
The reasons that most of the people at this blog won’t state the truth have been cited by them or they can be deduced. The inexplicability remains and it dooms organized labor and women.
Jefferson- in all ages, in all countries, the priest aligns with the despot.
Linda: In this same legislative season, the court also made it just peachy to fly a Christian flag from a public building. Maybe we could revisit the whole death penalty business and go back to burnings at the stake.
Yeah, NYC PSP, the Biden is just as bad folks are dumb as commemorative Trump presidency medallions.
A correction. Sorry, but I think this important, and I want to get it right.
The opinion, which I posted above, goes even further, questioning both the traditional reading of a right to privacy into the due process clause of the Fourteenth Amendment and the derivation of such a right to privacy from this and other Amendments (the First, Fourth, Fifth, and Ninth). This part of the majority opinion opens the possibility that this activist right-wing court will in the future overturn other decisions that relied upon a due process right to substantive privacy, including ones that overturned sodomy laws and allowed interracial and gay marriage. Here, quoting from the opinion: “Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, WHICH IS ALSO NOT MENTIONED.” The caps, for emphasis are mine.
First they came for women’s freedom over their own bodies. Then, . . .
I very much appreciate the focus on unions today. Thank you. Progressive taxation and unions are the issues that matter most to me, alongside ending high stakes testing and privatization.
Same here. And I would add Medicare for All to that list!
Progressive taxation and unions.
Don’t mean to be cold, cavalier, or contrarian, but — progressive taxation and unions.
Fundamental, these. You are absolutely right about that.
LCT
The “only issues” not, a prioritization. Got it.
THE issues. The issues away from which the culture wars cannot draw me.
“culture wars” is the rhetoric of Pat Buchanan, used in order to hide the plots of the alliance of evangelical protestants and conservative Catholics in their efforts to erode American liberty.
In Indiana, Catholics take credit for the school choice legislation. In Kentucky, media report the EdChoice V.P. is the associate director of the Catholic Conference of Kentucky.
If a person does an internet search of school choice and various state Catholic Conferences (the political arm of the bishops), he/she will understand theocracy in the U.S. can not be divorced from the political success in elimination of common goods/services and in expansion of tax funding for religion.
The Federalist Society led by Leonard Leo (received an award from a Catholic organization for his work) and ALEC, co-founded by the Koch’s Paul Weyrich (his training manual is posted at Theocracy Watch) are the life blood of anti-unionism. Btw- Weyrich’s plan was for parallel schools to destroy public schools.
Compartmentalization doesn’t serve the cause of unionism nor progressive taxation.
Some state Catholic Conferences cohost school choice rallies with the Koch’s AFP.
Can’t say that all the problems are economic ones, but most of them are! So, yes, thanks, LCT!
In other news, Putin is undergoing surgery for cancer. Funny, I thought Putin was a cancer.
Let’s hope he has a Ukrainian surgeon
Haaaa!!!
The Roe v. Wade story has me thinking back to the many, many comment threads during the 2016 presidential campaign. Thanks to all the swing-state idiots who couldn’t vote for Hillary!
https://dianeravitch.net/2016/07/15/michael-arnovitz-in-defense-of-hillary-clinton/