Tag Archives: labor

The Republican push to weaken child labor laws, explained

Originally published in Vox on May 5, 2023.
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Earlier this week Republican state lawmakers in Wisconsin circulated a new bill that would allow workers as young as 14 years old to serve alcohol in bars and restaurants, down from the state’s current age minimum of 18 years old. The legislative proposal “creates a simple solution” to workforce staffing issues, said the Republican bill sponsors in a memo they circulated to colleagues on Monday.

Wisconsin is not the only state looking to loosen labor laws affecting minors, and over the last few months there have been been Republican-led bills in states like Arkansas, Ohio, and Iowa aimed at making it easier for teenagers to work in more jobs and for more hours in the day. Some labor experts say the proposed changes pose little threat to workplace safety, but they’ve overlapped with shocking exposés in the New York Times and Washington Post that uncovered exploited migrant children working illegally in American jobs. On Tuesday, the US Labor Department announced it had found two 10-year-olds working at a McDonald’s in Louisville, Kentucky, sometimes until 2 am.

As the Wisconsin lawmakers suggested, these new bills are partly a reaction to the competitive labor market and struggles businesses have been facing to fill open positions. But they’re also rooted in longstanding conservative opposition to workplace regulation, and some labor advocates worry they’re just the opening salvo to a broader attack on government safety rules.

What are the new state laws being proposed?

Over the last two years, at least 10 states have introduced or enacted laws to change the rules governing teenage work requirements.

In 2022, New Hampshire and New Jersey passed laws extending the hours teenagers could work. New Hampshire lawmakers also relaxed rules for busing tables where alcohol is served, allowing 14-year-olds now to do it, down from the previous minimum of 15 years old. New Jersey lawmakers bumped up the number of hours teens can work during the summer (to 40 hours a week for 14- and 15-year-olds and 50 for 16- and 17-year-olds.)

This year lawmakers have advanced more bills in states like Georgia, Missouri, Nebraska, Ohio, and Iowa.

Some rule changes — like allowing teens to work later in the summer — sound fairly innocuous, but others have caused more concern, like a proposal in Minnesota to allow 16- and 17-year-olds to work on construction sites, and one in Iowa that would allow 14-year-olds to work in meat coolers. Others worry about a general slippery slope of loosening child labor laws, and sending a message to employers that enforcement will be even more relaxed than it already is.

For example, even though a federal labor investigation recently found 10 children working illegally in Arkansas for a company that cleans hazardous meatpacking equipment, in March, Republican Gov. Sarah Huckabee Sanders signed the “Youth Hiring Act” — a law eliminating Arkansas’ requirement that 14- and 15-year-olds get work permits. The work permits, which Republicans called an “arbitrary” burden, had required proof of age, parent permission, and an employer’s signature.

While work permits are not mandated under federal law, critics of the Youth Hiring Act said they provided an important paper trail of youth employment, and reminded Arkansas businesses of their legal obligations.

In Iowa, lawmakers are advancing a controversial bill that allows young teens to work in some currently prohibited fields, if it’s deemed part of a school or employer training program. Supporters of the bill say more hazardous jobs like heavy manufacturing and construction would still be barred from teen employment, but new exceptions for minors would include fields like demolition and manufacturing. The bill would also permit 16- and 17-year-olds to serve alcohol in restaurants, if their parents granted permission. Democratic lawmakers have voiced concern about the risks this poses to youth workers, especially since the bill would also extend the hours a teen could work into the night.

Michael McGrorty, a veteran wage-hour investigator, thinks the proposed state changes “are not really very important.” McGrorty predicted schools will likely still require parental permission for work-study credit even if states no longer mandate it, and said even if minors are approved to work in hazardous occupations, most firms still won’t allow it because their insurance won’t provide liability coverage. “This is the reason that construction apprenticeships don’t permit entry of minors, though the federal government allows this,” he told Vox.

The federal government provides a floor of protection against child labor, and that hasn’t changed — yet

The federal government regulates youth employment primarily under the Fair Labor Standards Act (FLSA), a law Congress passed in 1938. The FLSA bars “oppressive child labor” and sets a floor on standards, wages, and hours for teen jobs. Those standards include:

  • Minors of any age can work in virtually any business that’s entirely owned by their parents, except for youth under age 16, who can’t work in mining or manufacturing.
  • No minor can work in an occupation deemed hazardous, like roofing or forest fire fighting.
  • Children under 14 can work in FLSA exempt-jobs like delivering newspapers, acting, and babysitting.
  • On school days, 14- and 15-year-olds can work for up to three hours outside of school hours. On days when school is not in session, they can work up to eight hours.
  • During the summer months 14- and 15-year-olds can work until 9 pm, though during the traditional school year they can only work between 7 am and 7 pm.

The FLSA doesn’t regulate things like job breaks or benefits, but does allow for an employer to pay youth workers a minimum wage of $4.25 during their first 90 days on the job. The FLSA also has a much weaker set of protections for children working in agriculture.

Most minors are covered under FLSA, and states can pass their own protections on top, so long as they don’t conflict with the federal government’s. For example, it’s common for states to limit the hours 16-year-olds can work, and require all minors to get “work permits” to get jobs, but these are not federal rules.

Many of the legislative fights lately concern efforts to roll back some of those state protections, or to impose changes that apply to the narrow set of employers exempt from FLSA. However, there have also been some conservative rumbling about changing the federal rules, too. In Ohio, for example, Republican lawmakers approved a bill allowing 14- and 15-year-olds to work until 9 pm, rather than 7 pm, during the school year with parent permission, and passed a concurrent resolution urging Congress to amend the FLSA to bring it in line with Ohio’s change.

Enforcement of federal youth labor laws hasn’t been great

The Department of Labor is responsible for enforcing the FLSA, but the underfunded agency has been struggling greatly on that front. Earlier this year the agency announced the number of minors employed in jobs that violate child labor laws in fiscal year 2022 increased 37 percent over fiscal year 2021, and 283 percent over fiscal year 2015.

Congress has held the Labor Department’s budget flat for years, leading to a 12 percent loss in Wage and Hour division staff between 2010 and 2019. The department’s Office of the Solicitor has also lost more than 100 attorneys over the last decade, for these same budgetary reasons.

In February the Labor Department reported findings from 14 separate child labor investigations, including one that found Packers Sanitation Services, Inc. had been illegally employing over 100 teens between the ages of 13 and 17 in hazardous occupations. Federal investigators found the use of child labor “systemic” across eight states.

While the Department of Labor has over 600 additional child labor investigations open, critics note the penalties for violating FLSA are weak, thus the law itself may be a weak deterrent. The penalty for Packers Sanitation, for example, was a mere $1.5 million.

In the wake of the New York Times investigating companies illegally employing youth migrant workers in dangerous jobs, the Departments of Labor and Health and Human Services launched a new joint task force to investigate the problem, and pledged to try and better vet sponsors of unaccompanied children.

Lawmakers are also scrambling to react with bills in Congress to increase civil penalties for child labor law violations, though for now nothing has moved forward.

Conservatives and business groups have long objected to youth employment restrictions and they’re behind the new bills today, too

Some conservatives have long seen child labor laws as government overreach, dictating rules for minors that should be left up to individual families. Others simply oppose most forms of government regulation. And still others see youth labor restrictions as an unnecessary barrier at a time when companies are struggling to hire workers.

Conservative billionaire Charles Koch and his late brother David Koch have long used their fortunes to support rolling back child labor restrictions. In 1980, David Koch ran for vice president on the Libertarian Party ticket and pledged to “abolish” child labor laws, income taxes, and Medicare. In 1982, Ronald Reagan’s administration proposed the first major change to federal child labor laws in 40 years, to expand the hours and types of jobs 14- and 15-year-olds could work, and make it easier for employers to pay students less than minimum wage.

Tesnim Zekeria from Popular Information highlighted some of the more recent Koch-funded efforts to weaken support for child labor laws, including an essay, “A Case Against Child Labor Prohibitions” published in 2014 from the Koch-funded Cato Institute that argued depriving work opportunities to poor children in developing countries “only limits their options further and throws them into worse alternatives.”

In 2016, a Koch-funded conservative nonprofit, the Foundation for Economic Education, published “Let the Kids Work” where the author argued children taking jobs would help them develop a work ethic, a professional network, and skills and discipline to build character. In 2019, another academic tied to the Koch-funded Commonwealth Foundation argued in Forbes to eliminate the minimum wage for teenagers.

Last week the Washington Post reported on a Florida-based conservative think tank, the Foundation for Government Accountability, that has played a leading role in the recent spate of bills winding through state legislatures. In March, the Arkansas state representative who sponsored the state’s “Youth Hiring Act” said the bill “came to me from the Foundation [for] Government Accountability.” The Post also found the Florida think tank helped a Missouri lawmaker craft and edit their child labor bill.

Other conservative causes the Foundation for Government Accountability focuses on include blocking Medicaid expansion and adding new restrictions to welfare programs like food stamps. On their website they proclaim they help “free individuals from the trap of government dependence and to let them experience the power of work.”

Yet another conservative group pushing new bills to weaken child labor rules is the National Federation of Independent Business (NFIB), the primary lobbying arm for small businesses. The American Prospect and Workday magazines reported on its advocacy role and its reliance on the tight labor market as justification. “Our members’ inability to fill workplace vacancies has catapulted to the top concern currently facing the success of their businesses,” said NFIB in 2021 testimony it submitted in support of Ohio’s proposed bill.

The Foundation for Government Accountability also points to the worker shortage as justification. In a white paper the group published in 2022, they emphasized that teenagers “are a critical source of labor for businesses struggling to find help” and underscored that parents should get to decide whether their kids worked or not, linking their advocacy to a broader political push on the right for “parents’ rights.”

According to an analysis by the left-leaning Economic Policy Institute, between 2001 and 2021, the share of 16- to 19-year-olds not working increased by 22.4 percent, which the think tank said is “almost entirely explained” by the higher share of young people prioritizing education during those years.

The risks of loosening youth employment rules

Immigration advocates say the loosening of child labor rules poses the greatest threat to migrant children, who are already more vulnerable to exploitation. The number of unaccompanied children entering the United States rose to 128,904 in 2022, per federal data.

Ending work permits, some advocates warn, will make it even harder to track the landscape of child labor in the United States. The Census Bureau’s American Community Survey only asks about employment status for those 16 and older. Some children are paid in cash, and the available data on youth employment — especially in agriculture — is notoriously incomplete.

“We don’t have very good estimates of the number of independent child migrants that are working in the United States,” Eric Edmonds, an economist at Dartmouth who studies youth trafficking and child labor, told The Dispatch in March. “My guess is that the number of independent child migrants that are working are a fraction of a percent of the number of children working in the United States.”

Labor experts warn that the weakening of child labor laws also threatens other workplace regulations, as well as the wages of all workers. Many of the same conservative organizations pushing these rules have also taken aim at union rights and environmental safety standards.

For now, many of these efforts have picked up steam by skating under the radar, and seizing on the fact that many parents hold favorable opinions generally of teen work. A recent national poll led by the C.S. Mott Children’s Hospital National Poll on Children’s Health found only 29 percent of parents considered themselves very informed about their state’s laws for teen employment, but over 60 percent said teen jobs helped promote time management skills, and over 75 percent said they help teach money management.

In March the Des Moines Register/Mediacom Iowa Poll surveyed state residents on the bill pending in the Iowa legislature to relax child labor laws, and found 50 percent favored the bill, 42 percent opposed it, and 8 percent were unsure. Republicans and men were likely to support the bill, while Democrats and a plurality of women opposed it. Among parents of those with children under 18, the pollsters found 57 percent backed it.

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How electric vehicles have helped labor and climate groups team up

Originally published in The Guardian on December 23, 2021.
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As the Biden administration attempts to increase incentives for the production of electric vehicles, labor unions and climate groups have teamed up to push for better wages and working conditions for autoworkers – and leave the door open for the nascent EV industry to unionize.

Last month, leaders from some of the largest environmental groups in the country sent a letter to top executives at Toyota, lambasting the automaker for appearing to support the electric vehicle revolution all while lobbying against a proposed tax credit for union-made electric cars.

The tax credit would give $4,500 to consumers who buy electric from unionized US plants – currently just Ford, General Motors and Stellantis NV would qualify – and has been hotly opposed by companies like Tesla, Honda, Hyundai and Nissan. But Toyota went a step further and began funding ads in papers like the New York Times, Wall Street Journal and trade press claiming the federal bonus would hurt non-union autoworkers. (All electric vehicles, union or not, would remain eligible for an existing $7,500 tax credit.)

Representatives from 12 groups – including the Sierra Club, the League of Conservation Voters and Evergreen Action – blasted Toyota for “greenwash[ing] its image” and called its lobbying “extensive and unacceptable”. The organizations rejected Toyota’s claim that incentivizing electric vehicles with union labor would hurt the nation’s climate targets, and said its “manipulation of the political system and undermining action on climate is not limited to the United States”.

This came on the heels of another letter from prominent climate groups, urging electric vehicle start-up Rivian to respect workers’ wishes should they decide to unionize, and permit what’s known as a card check process. Rivan, which went public last month in the biggest US IPO since Facebook, is poised to ramp up vehicle production in the next year.

Ten climate groups, including Friends of the Earth, Greenpeace USA, Sunrise Movement and 350.org, signed on to the letter – and said therein that they had reached out to Rivian privately in August. After two months with no response, the groups decided to take their demand for labor peace public. The president of the United Auto Workers announced in the spring that his union was planning to organize EV workers.

As lawmakers in Congress continue to hash out a wide-ranging social spending bill, labor unions, climate groups and prominent liberal thinktanks have joined forces to make the case that reducing emissions while creating unionized manufacturing jobs in the US is not only possible – but better for consumers and manufacturers alike.


This isn’t the first time that labor and climate groups have found common ground – but it represents a revitalized alliance that could help strengthen both the fight for reducing emissions and for bolstering worker rights.

Transportation is the largest source of pollution in the country, and the growth of non-union auto work has been accompanied by a nearly 20 percent decline in wages in the auto industry since 1990. “The fight for environmental and economic justice –the right for every American worker to not just survive but to thrive – are inextricably linked,” wrote UAW president Ray Curry and Center for American Progress founder John Podesta in a joint-op-ed this summer.

Rivian is not the only vehicle manufacturer that green groups have been targeting, according to Katherine García, who leads the Transportation for All campaign at the Sierra Club. “Behind the scenes there are other vehicle manufacturers we’re working with on labor peace,” she told the Guardian, adding that they’ve been holding one-on-one meetings to make their case.

While environment and labor groups have not always seen eye-to-eye, the two have a history of shared interests. Josiah Rector, an urban historian at the University of Houston who has studied the 20th century environmental movement, noted that the UAW has previously fought against toxic chemicals and pollution in auto plants.

But in the 1970s, says Rector, automakers viewed the fight for cleaner air and other environmental standards as yet another threat to their bottom line, at a time when they were already hurting from two major oil crises, intensifying deindustrialization, and the closing of manufacturing plants. Automakers began to play “environmental blackmail” against their workers, insisting that any further regulation from the government would force companies to cut even more jobs. “UAW, under threat of job blackmail, helped the companies lobby for a weaker Clean Air Act, which really strained tensions with the environmental movement,” said Rector.

Erik Loomis, a labor historian at the University of Rhode Island, also noted that the decline in industrial unions has especially hurt the unions that were more progressive to begin with – widening the gap between climate progressives and labor. “That left you with the longtime more conservative unions, and as environmentalism has become more of a rich person’s movement it also became disconnected from working-class culture,” Loomis said.

“I think the reality is climate groups have now realized that’s politically untenable and they need to build working-class coalitions if they want to get climate change legislation passed,” he adds. In other words, Loomis said, whether the modern-day solidarity is an alliance of deeply shared values or of convenience, the fact is that “neither are particularly strong enough on their own to get laws passed.”

Jason Walsh, executive director of the BlueGreen Alliance, a coalition of labor unions and national environmental groups, attributes the work they’ve been doing recently to many years of relationship building, but credits the Build Back Better Act for catalyzing their efforts in 2021.

“That has focused everyone’s attention, and there’s an understanding that we need to reverse this trend of offshoring and de-unionization that’s hollowed out communities across the country,” he said.

The White House has set an ambitious goal of making half of all new car sales electric by 2030. Even with the united front from labor and climate groups, and the strong backing of a unionized EV sector from Joe Biden, it’s not clear the union-made tax credit will make it through the Senate. West Virginia senator Joe Manchin has voiced opposition to the subsidy, saying that taxpayer dollars shouldn’t be used as an incentive for consumers. Republican governors with non-union auto facilities have also urged Congress to reject the tax credit, and Elon Musk, the CEO of Tesla, called Biden a “UAW … puppet” on Twitter. (Brian Rothenberg, a spokesperson for UAW, declined an interview, saying their focus is on passing the Build Back Better Act.)

For now labor and climate groups are scrambling to get the bill over the finish line, and make the case that in order to compete effectively in the global electric vehicle revolution, the US needs to invest more in the workers who make the cars on American soil.

Sam Ricketts, co-director of Evergreen Action, said while there have been signs of solidarity between unions and environmental organizations in recent years, the steps being taken in the electric vehicle debates, like climate groups pressuring companies directly and publicly, represent something new and more concerted. “This is new work happening in civil society, with groups recognizing that organizing can happen in the commercial sphere, not just the halls of Congress,” he said. “It’s leading-edge in that way.”

Rector, the University of Houston historian, said that if climate and labor groups want to surmount the problems that have plagued their solidarity efforts in the past, they’ll need a plan to defeat arguments that climate goals are zero-sum for union workers. “To solve the environmental blackmail problem, you need to have strong policies that undercut the argument coming from corporations and today from politicians like Joe Manchin,” he said. “And to do that, you need a strong coalition to push those policies through.”

In New York City, Retirees Brace for Switch to Privatized Health Care

Originally published in The Intercept on August 19, 2021. Co-authored with Sam Mellins.
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STARTING IN JANUARY 2022, over a quarter million former New York City government workers and their dependents are set to be shifted off Medicare and on to privatized health insurance. Mayor Bill de Blasio and the Municipal Labor Committee, which represents retired New York City employees, announced the move in mid-July, following several months of scrambled protest from bewildered retirees.

The plan has been cast as a necessary measure to rein in mounting health care costs and reduce strain on the city’s budget. While public sector retirees in New York City are currently insured by Medicare, the federal government’s program for people over 65, the city reimburses them for outpatient care, as well as for a “Medigap” plan that offers additional services. City officials and union leaders have negotiated a deal that they claim will save upward of $600 million by switching to Medicare Advantage, the federally funded privatized health insurance program that launched ostensibly to give consumers more choice and reduce Medicare costs.

For months, union leaders have emphasized that despite distressing stories members may have heard about Medicare Advantage, the new plan will yield affordable care at the same level, if not better, for enrolled retirees and their dependents. But retirees who spoke with The Intercept and New York Focus expressed concerns that their health care will become less accessible over time, and health care experts say their fears are not unwarranted.

Retirees who do not want to switch to privatized insurance will have the option to remain in traditional Medicare, but they will need to pay a monthly premium, currently covered by the city, to access the same level of coverage they receive now. That rate is likely to be around $200 a month, estimates Stu Eber, president of the Council of Municipal Retiree Organizations, a group that advocates for retired city workers.

Eber predicts that this option will be infeasible for many older adults. “There are tens of thousands of people … whose pensions are less than $20,000 a year,” he said. “They can’t afford it; they have no choice. They’re going to be in this Medicare Advantage plan.” The new plan has been awarded to a coalition of Emblem Health and Blue Cross known as “The Alliance.”

Now that the plan has been approved, the city and labor committee are doubling down on their efforts to persuade the public that the switch is good policy and the coverage is nothing to be concerned about.

The city points to rising costs associated with traditional Medicare, which have increased nearly 50 percent over the past six years. To make up for the higher costs, co-pays for those who opt to stay in traditional Medicare will begin in January. A side-by-side comparison of the traditional Medicare option and the Medicare Advantage plan, released by the city, shows competitive rates and benefits between the two in the coming year. Some elements of the Medicare Advantage plan, such as annual maximum out-of-pocket costs and primary care physician visits, actually appear friendlier to beneficiaries.

benefit-comparison-1

“This new plan not only mirrors and improves on the GHI Senior Care Plan [the city’s traditional Medicare option], it also includes aggressive oversight to protect member benefits,” read one update from the United Federation of Teachers, the city’s teachers union. “Most importantly, under this plan, retirees will still have premium-free access to the same providers and hospitals they now use.”

One flyer from the Municipal Labor Committee says that savings will come from “subsidies” the federal government gives to Medicare Advantage programs because Medicare Advantage “relieve[s] it from much of the back-office tasks” associated with traditional Medicare.

But health insurance experts said that explanation doesn’t hold water. Under Medicare Advantage plans, the federal government pays private insurers, whereas under the current model, the federal government pays providers directly for care.

“It’s not that the federal government is paying for something they weren’t paying for before, it just changes the nature of how they pay,” said David Meyers, an assistant professor at the Brown University School of Public Health.

And indeed, when pressed for details, a de Blasio administration spokesperson acknowledged that “it’s a mischaracterization to call it a subsidy.”

In reviewing the cost-benefit comparison literature, Meyers told The Intercept and New York Focus that the proposed Medicare Advantage plan “appears to be somewhat generous as far as plans go.” He pointed to relatively low out-of-pocket maximum costs of $1,470 and supplemental benefits such as meal delivery on returning from a hospital stay. “It’s not obvious that this is a predatory sort of plan,” he said.

Another health policy expert agreed. “The outlook for the first year looks pretty good,” Tricia Neuman, executive director of the Kaiser Family Foundation’s Program on Medicare Policy, told The Intercept and New York Focus.

But concerns remain for retirees trying to figure out if they’re getting a raw financial deal. Some local health advocates, meanwhile, believe that the shift will create new disparities among New York City retirees across race and gender.

The New York Metro chapter of Physicians for a National Health Program, a national group of health care professionals who support single-payer health insurance, warned that the city’s Medicare Advantage plan will create a bifurcated system: Higher-income, predominantly white retirees will stay on traditional Medicare because they can afford the supplemental Medigap insurance, while lower-income retirees, predominantly people of color, will accept the more restricted Medicare Advantage plan.

Physicians for a National Health Program – NY Metro statement3 pages

The chapter further cautioned that the move to Medicare Advantage could result in gender disparities already demonstrated in worker pay. Among current New York City municipal workers, 58 percent of men earn $70,000 or more, compared to just 36 percent of women. “This disparity in income among retirees is likely to be even greater, since they worked for the city before many of the current measures aimed at decreasing inequalities in the workforce were put in place,” noted Leonard Rodberg, the New York Metro chapter’s research director and a municipal retiree.

These inequities have played out nationally, according to Meyers. “Medigap plans can often be quite expensive, so many lower-income people, who are often minorities, tend to enroll in Medicare Advantage at high rates and Medigap at lower rates,” he said.

Another top concern is whether the costs imposed on retirees would remain similar to traditional Medicare over time or whether the plan might shift more costs on to older adults in years to come.

The present cost-sharing arrangement has been locked in through 2026, a spokesperson for the de Blasio administration told The Intercept and New York Focus. But uncertainties surrounding federal funding of Medicare Advantage and less stringent pricing regulations than exist in traditional Medicare mean that the post-2026 future is less certain.

“This arrangement assumes that Medicare will continue to provide favorable payment to Medicare Advantage plans that enable them to provide extra benefits,” said Neuman. “That may continue into the future, but it may not.”

Many retirees are also concerned about the plan’s requirement that enrollees obtain permission from insurance companies before accessing certain recommended procedures. A significant portion of the savings achieved by most Medicare Advantage plans hinges on such preapprovals.

“Gatekeepers are never a good thing,” Eber said. “They stand between you and getting the medical assistance and tests that you need, when you need them.”

A spokesperson for the de Blasio administration said that services requiring such pre-authorization would include inpatient hospital admissions, skilled nursing facility admissions, rehabilitation services, complex radiology, prosthetics and orthotics, and transplants.

“To wait around for somebody to say, ‘Yes, you can have an MRI; yes, you can go to physical therapy; no, I don’t think you need this test or that test’ — I’m not interested,” said Jane Roeder, a retired city administrator.

Some retirees may even be receiving misinformation from their own union leadership regarding which services will require authorization under the new plan. A United Federation of Teachers spokesperson told The Intercept and New York Focus that the new Medicare Advantage plan “will have to adhere by the same ‘prior authorization’ requirements as [traditional] Medicare.”

But other than for “durable” medical equipment (such as walkers or oxygen tanks), prosthetics, and certain physician-administered drugs, traditional Medicare very rarely requires preapprovals.“

Diane Archer, president of Just Care, an informational site that offers health and financial tips to older people, said suggesting that retirees will get the same health care fundamentally obscures the differences between the two programs. “They may offer the same benefits, but the way Medicare Advantage plans ‘save money’ is by covering fewer services,” she said. “What few people understand is that ‘same benefits’ is very different from ‘same health care.’”

On top of pre-authorization, Medicare Advantage plans tend to come with more restrictive networks than traditional Medicare, which offers access to the vast majority of physicians nationally. “While the plan is PPO and claims to have a very large network, PPO plans can still guide you to specific providers,” said Meyers. “I can’t say if the plan will have a robust network in the NY area- if it does, it might be fine, but one of the largest benefits of [traditional Medicare] is that there are really no network restrictions.”

The city and union leadership argue that retirees need not worry. According to an FAQ published by the city’s Office of Labor Relations, 640,000 out of 850,000 Medicare providers nationally are contractually obligated to accept their new Medicare Advantage plan.

A de Blasio administration spokesperson dismissed concerns regarding whether the remaining 210,000 will accept the plan, noting that those providers will be compensated at the same rates that Medicare pays. In the case of recalcitrant providers, a call center will assist retirees in getting payments to relevant physicians, the spokesperson said.

According to the FAQ, as a last resort, retirees can pay their providers and submit the claims to the health insurance companies for reimbursement.

Notably, the city is touting the fact that Hospital for Special Surgery and the Memorial Sloan Kettering Cancer Center — two top-tier local hospitals that typically do not accept Medicare Advantage — have agreed to participate in their plan. But there is no binding legal obligation yet, a de Blasio spokesperson confirmed, though the administration expects to finalize an agreement with the hospitals before January. “Both facilities have agreed to continue to see our Medicare Advantage members on an out-of-network basis while negotiations are underway,” the spokesperson added.

But to some retirees, the assumption seems risky.

“How many hospitals are there in this country that don’t accept any Medicare Advantage plan? Why all of a sudden will they accept this one plan?” asked Eber, who noted that he represents retirees living all over the country. “We don’t share the confidence that the city and the Municipal Labor Council have. We hope they’re right, but the proof will be in the pudding come January.”

A spokesperson from Memorial Sloan Kettering declined to comment. Tracy Hickenbottom, a spokesperson for Hospital for Special Surgery, said, “We work with patients, payers and community leaders to demonstrate value and best serve as many people as possible. This enables us to offer acceptance of most major insurance plans for Hospital services, including several Medicare Advantage plans.”

NEW YORK MUNICIPAL retirees are not alone in wondering what an increased push toward Medicare Advantage means for them. As of this year, 42 percent of all Medicare beneficiaries are enrolled in Medicare Advantage plans, up from 24 percent a decade earlier. The Congressional Budget Office projects that share could hit 50 percent by 2026.

“Retiree health benefits have become a significant expense, and employers are looking for ways to meet their obligation and cut costs, which makes Medicare Advantage quite appealing at the moment,” said Neuman.

Despite so many people now on the privatized plans, researchers say they do not have a strong grasp of what kind of health care beneficiaries are actually receiving, especially those who are sickest or have the most complex needs.

This past spring, in an annual federally mandated analysis on Medicare, the Medicare Payment Advisory Commission wrote that “the current state of quality reporting in [Medicare Advantage] is such that the Commission can no longer provide an accurate description of the quality of care.”

The plans are also taking a toll on federal coffers, due to overpayments and disenrollments in the final year of life, among other factors. “There is no question that Medicare Advantage is unsustainable in the long term,” said Archer. “It’s driving up Part B premiums, eroding the Medicare trust fund, and costing taxpayers tens of billions a year more than traditional Medicare.”

While support for Medicare Advantage in Congress has been strong and bipartisan for some time, Politico reported on August 3 that some lawmakers and outside groups are pushing “some form of cuts” to the program as a potential source of savings in the budget reconciliation bill. Politically, it may also be easier for the federal government to reduce reimbursements to health insurance companies than to the providers it pays directly through traditional Medicare.

If federal support for Medicare Advantage decreases, costs may rise for city-insured retirees like Josephine Malaysz, who worked for decades as a nurse in the city’s public and private hospitals. Malaysz, whose husband is also a city-insured retiree, views the shift to Medicare Advantage as a poor measure of gratitude for the couple’s long careers in public health.

“My husband worked over 30 years as a paramedic — sometimes he would work 80 hours a week. He loved his job,” she said. “And when I was in the city hospitals, I gave my all to my patients.”

“We gave ourselves to the city, and now you’re retired, and here we go,” she added. “It’s just not respectful.”

A Debate Over Carbon Capture in the Infrastructure Bill Could Test the Labor-Climate Alliance

Originally published in In These Times on April 15, 2021.
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n late March, President Joe Biden unveiled a $2.3 trillion infrastructure package, the American Jobs Plan, that his administration hopes to move forward this year. The plan would make major investments in improving physical infrastructure such as roads, schools and bridges while also creating good-paying jobs, expanding collective bargaining rights and funding long-term care services under Medicaid. 

The president’s plan also endorsed another proposal that a group of bipartisan lawmakers hope makes it into a final bill: expanding carbon-capture utilization and storage (CCUS) in the United States. The SCALE Act, introduced in mid-March by eleven senators and six House representatives, represents the country’s first comprehensive CO2 infrastructure and jobs bill. In describing the president’s infrastructure plan, the White House said it ​“will support large-scale sequestration efforts” that are ​“in line with the bipartisan SCALE Act.” 

The legislation, which would authorize $4.9 billion in spending over five years, would create programs to transport and store carbon underground. Its provisions include establishing low-interest loan programs modeled off of federal highway development programs, increasing EPA funding for permitting carbon storage wells, and providing grants to states to create their own permitting programs. Advocates point to countries such as Canada, Norway and Australia where elected officials have made similar investments in carbon storage infrastructure. 

The SCALE Act is notable both for the support it has, and hasn’t, received. Its early endorsers include a half-dozen industrial labor unions, centrist climate groups like the National Wildlife Federation, and energy companies like GE Gas Power and Calpine. Fossil fuel industry support for carbon-capture has historically been a top reason why progressive climate groups, meanwhile, remain skeptical of the idea, wary of subsidizing anything that amounts to corporate giveaways to some of the world’s worst polluters. While carbon-capture has long been a flashpoint in Democratic climate politics, most critics of the policy have stayed quiet on the SCALE Act for now.

Modeling released in December by the Princeton Net-Zero America Project found that construction of nearly 12,000 miles of pipelines capable of storing 65 million tons of CO2 per year would be needed by 2030 for the United States to reach net-zero emissions by 2050 — a stated goal of the Biden administration. The Clean Air Task Force, a climate advocacy group, says the SCALE Act programs are ​“consistent” with the quantity and timeline of infrastructure deployment needed to meet those goals.

To date, nearly all U.S. carbon-capture projects are situated near existing CO2 pipelines and Lee Beck, the CCUS policy innovation director at the Clean Air Task Force, says the SCALE Act’s goal would be to capture emissions from multiple sources and then transport the CO2 for storage elsewhere, as is currently being carried out through Canada’s Alberta Carbon Trunk Line System and Norway’s Northern Lights Project.

Supporters point to a number of recent scientific analyses that make the case for greater investment in carbon-capture. In February, the National Academies of Sciences released a report on decarbonizing the U.S. energy system which recommends that, over next decade, officials should focus on increasing deployment of carbon-capture technologies by a factor of ten while investing in permanent CO2 storage infrastructure. In 2020, the International Energy Agency warned that it would be ​“virtually impossible” to reach net-zero emissions without carbon capture technology, and the Intergovernmental Panel on Climate Change has said carbon capture is likely necessary to meet global climate targets. Supporters note that renewable energy sources like wind and solar are not viable alternatives for reducing carbon emissions in the industrial sector, which account for 32 percent of the United States’ energy use and nearly a quarter of its direct greenhouse gas emissions. 

President Biden’s campaign climate plan called for accelerating development of carbon-capture and he included Brad Markell, the executive director of the AFL-CIO Industrial Union Council, on his Department of Energy transition team. Markell endorsed the SCALE Act in March and said it ​“will be crucial to meeting President Biden’s goals of reaching net-zero emissions in the power sector by 2035 and economywide by 2050.”

In addition to Biden’s support, the Congressional politics bode well for SCALE Act advocates. Introduced by Sens. Chris Coons (D‑Del.) and Bill Cassidy (R‑LA) in the Senate, the bill would first go through the Senate Committee on Energy and Natural Resources, where Joe Manchin (D‑W.V.), a co-sponsor of the bill, serves as chair. The House version of the bill was introduced by Reps. Marc Veasey (D‑TX) and David McKinley (R‑W.V.) and the chamber passed several carbon-capture bills last year. In March, Democratic governors of Pennsylvania and Louisiana (Tom Wolf and John Bel Edwards) joined the Republican governors of Oklahoma and Wyoming (Kevin Stitt and Mark Gordon), in writing a letter to Congress urging the passage of the SCALE Act in any future infrastructure package.

In an email, Sen. Coons told In These Times that he ​“appreciates [Energy] Secretary Granholm’s public statements in support of CCUS, including CCUS transport infrastructure, and am encouraged by my conversations with the Biden administration over the last several months.” 

Perhaps the biggest asset working in the SCALE Act’s favor is the support of organized labor. Biden has faced heat in the media in recent weeks over whether he can truly deliver an ambitious climate agenda while supporting unions. The SCALE Act has endorsements from labor groups including the Utility Workers Union of America, IBEW and North America’s Building Trades Unions. And the BlueGreen Alliance — a coalition of labor and environmental groups — supports CCUS, though has not yet taken a position on the bill. One analysis commissioned through the Decarb America Research Initiative estimated that the SCALE Act would generate roughly 13,000 jobs annually over the 5‑year period, though many unions are excited by the prospect of simply maintaining existing jobs.

“We see carbon-capture technology as a way to retain jobs in industries that are core sectors of our union,” said Anna Fendley, the director of Regulatory and State Policy for the United Steelworkers. ​“It feels like the conversation around reducing emissions in the U.S. has been so focused on the power sector for so long and now a lot of groups and advocates are learning more about the industrial sector.” 

A false solution?

Carbon-capture opponents have described the policy as one of several ​“false solutions” to the climate crisis. Though many of these activists typically say that we can’t afford not to invest in fighting climate change, on matters of CCUS, they argue the technologies are too expensive, too under-developed, and will detract from other important investments that government needs to make in order to transform the economy. At worst, critics fear investments in carbon-capture could prolong overall dependence on fossil fuels. 

Last September, the House of Representatives passed a clean energy package, but after a coalition of progressive climate groups — including Sunrise Movement, Friends of the Earth, and the Climate Justice Alliance—protested the bill’s inclusion of pro-carbon capture provisions, 18 Democrats, including Reps. Alexandria Ocasio-Cortez (D‑N.Y.), Rashida Tlaib (D‑Mich.), Ilhan Omar (D‑Minn.), and Ayanna Pressley (D‑Mass.), voted against it. In These Times reached out to a number of climate groups that have opposed carbon-capture infrastructure in the past, including Sunrise Movement, Friends of the Earth, and the Labor Network for Sustainability. Most have not spoken publicly on the SCALE Act to date and declined to comment for this story. 

Limited organizational capacity for rapid legislative analysis is one possible factor for the silence. Joe Uehlein, president of the Labor Network for Sustainability, said their group had not heard about the SCALE Act prior to In These Times’ inquiry. While noting they are ​“not in the CCUS camp,” Uehlein said the group hasn’t yet decided how it plans to respond to the bill. The Sierra Club declined the Charleston Gazette-Mail​’s request for comment on the SCALE Act. 

Some left-wing organizations, like Sunrise Movement and Evergreen Action, have previously acknowledged that industrial carbon capture could be acceptable, and others have expressed more interest in direct air capture, a method that sucks CO2 out of the atmosphere. 

Basav Sen, the Climate Justice Project Director at the Institute for Policy Studies and the co-chair of the Energy Democracy Working Group at the Climate Justice Alliance, told In These Times that rather than protesting individual pieces of carbon-capture legislation — ​“which would make it a game of whack-a-mole” — environmental justice groups in his coalition are focused on educating members of Congress and their staff on why they should avoid such ​“false solutions” altogether. He added that putting new demands on the electrical grid through CCUS, direct air capture, and even industrial production of steel and cement at current levels was misguided at this stage of the transition away from fossil fuel energy.

Sen also criticized carbon-capture advocates for citing the 2018 IPCC report as evidence that CCUS is needed, as opposed to reforestation which the IPCC also explored. Reforestation, or replanting an area with tress, is another way to remove CO2 from the air. Research suggests this solution can also offer significant short-term emissions reductions, but a 2019 IPCC report also warned that planting large-scale forests for carbon-removal efforts could lead to increased food insecurity and other environmental issues.

Beck, of the Clean Air Task Force, argued that it would be irresponsible to take any decarbonization options off the table in 2021, and emphasized that building out CO2 infrastructure would not help keep aging or non-economical facilities online. Shannon Heyck-Williams of the National Wildlife Federation agreed that ​“when it comes to coal power generation, there really is no future for coal power in America and carbon-capture doesn’t change that.”

But Beck and Heyck-Williams also maintained that, since there are so many existing natural gas facilities in the United States, it does makes sense to try and capture the carbon coming out of those plants — at least for now. ​“It would be faster to retrofit some of these facilities than expect they will be all phased out in the next decade in the current climate policy environment,” argued Beck.

SCALE Act supporters know they’ll have to tread carefully with language around CO2 pipelines, given the years of dedicated activism in the climate movement against new oil and gas pipelines. Advocates of CCUS prefer to focus on phrases like ​“CO2 infrastructure” and ​“carbon management,” which they hope will steer the conversation away from flashpoints like Keystone XL. Beck notes that carbon infrastructure includes not just pipelines but also shipping, rail and barge. ​“CO2 pipelines are very different in terms of size and safety,” added Jessie Stolark, the public policy and members relations manager for the Carbon Capture Coalition. ​“But to be completely honest, I do think we have an uphill battle in terms of reassuring people and conveying that kind of information.”

Whether progressive climate groups will choose to rally opposition to a congressional infrastructure bill that includes the SCALE Act — like they did for the clean energy package in 2020 — remains unclear. It will undoubtedly be tougher to pressure lawmakers to vote against a package that includes so many other key priorities. For now, rather than take aim at Biden’s new infrastructure plan for its support for carbon-capture, progressive climate groups have stuck to criticizing the package for committing too little spending on climate change mitigation efforts overall, with some advocates calling for a minimum of $10 trillion in spending over the next decade.

“It’s up to us to ensure that this proposal is strengthened, becomes law and that it is the first of many pieces of legislation that will address the many crises facing our generation,” said Deirdre Shelly of the Sunrise Movement. 

Workers’ Compensation in D.C.: Separate and Unequal

Originally published in Washington City Paper on October 7, with the support of Spotlight DC — Capital City Fund for Investigative Journalism.
——

In April 2009, then-53-year-old Esther Layne, a customer service representative with the D.C. Office of Unified Communications, suffered an acute attack from exposure to allergens in her workplace and had to be hospitalized. Layne says she was first exposed to toxic gas and pesticides while working as a clerk typist for a D.C. substance abuse facility in the 1990s. Though she tried to return to work following her 2009 hospitalization, Layne continued to suffer complications, and never fully recovered. A few months later she was approved for public sector worker’s compensation, and began receiving benefits both to treat her asthma and rhinitis, and for wage loss.

Now, at 65, Esther Layne is fighting an unexpected development: D.C. abruptly cut off her benefits after a city-hired physician concluded last year that her ongoing symptoms including sensory deficits and shortness of breath could not be objectively linked to her workplace exposure. “I see a top allergist in D.C. [Dr. Elena Reece] and they just ignored her letter, and they send me to their doctors who are quacks,” Layne says.

Now Layne’s attorney is pressing the city to give her permanent relief, but D.C. is claiming because she worked in the public sector as opposed to the private sector, she’s not even entitled to that kind of redress anymore. 

“All my credit cards are maxed out and the little bit of savings I had is gone,” Layne says. “I’m trying not to be depressed, but I’m so stressed and I’m behind on all my bills. They don’t care anything about your health and living situation. It’s disrespectful, and the thing that really bothers me is I dedicated my life to government.”

Layne’s fight for relief overlaps with other ongoing worker compensation battles in D.C, an area of government that has garnered markedly little media and political attention over the years. Unlike nearly every state, D.C. has two separate systems for injured public and private sector workers, and the inequalities between those systems have grown wider over the last decade as new restrictions limiting benefits for public sector employees have rained down.

Workers’ comp is now slated for a rare moment in the spotlight, with a Council hearing scheduled for Oct. 16, but even that event is enmeshed in confusing politics. Ward 4 Councilmember and government operations committee chairman Brandon Todd introduced two bills in July to address some of the inequities of the public-sector system, but his bills have no co-sponsors to date. And since Todd lost his primary to challenger Janeese Lewis George in June, he will exit the Council at the end of the year. 

Some Council watchers speculated his bills had been driven by a last-ditch effort to court labor groups during the primary, since union discussions around potential workers’ comp reform started in the winter. Others pointed to the influence of Todd’s chief of staff, Sherryl Newman, who is married to an attorney who represents injured public sector workers in the city. Todd did not return multiple requests for comment.

“Workers’ comp is one of those technical issues that does really end up affecting people’s lives, but it doesn’t really rise up to be anyone’s top priority,” says Elizabeth Falcon, the executive director of DC Jobs with Justice, and a supporter of one of Todd’s bills.“Even for the unions there’s only some sectors that need workers’ comp … I hope that the weird politics of this don’t undermine the Council solving the problem, which is real.”

***

Originally born out of Germany and later adopted by the U.S. in the first two decades of the 20th century, workers’ comp is the idea that employees will give up their right to sue if they are injured on the job, and in return employers will pay their medical expenses and at least some of their lost wages. Factories were dangerous places and highly prone to gruesome accidents, and in his 1907 State of the Union Address President Theodore Roosevelt touted the importance of expanding this workplace bargain. “The number of accidents to wage-workers, including those that are preventable and those that are not, has become appalling in the mechanical, manufacturing, and transportation operations of the day,” Roosevelt declared. “It works grim hardship to the ordinary wage-worker and his family to have the effect of such an accident fall solely upon him.”

Today, in nearly every state, injured public and private sector workers are covered under the same set of workers’ comp rules, except police officers and firefighters, who often have their own arrangements. But in D.C. it’s different, a product of Congress’ decades of control over local affairs. When Congress gave governing authority back to the District in the 1970s, it required D.C. to establish a merit-based personnel system that mirrored the Federal Employee Compensation Act, leading to the Comprehensive Merit Personnel Act of 1978. Among other things, this law established workers’ comp for former federal employees now working for the city government; private sector workers were covered under their own statute passed a year later. While both sectors of workers’ comp were originally handled by D.C.’s Department of Employment Services, beginning in 2003 public sector workers’ comp was transferred to the newly created Office of Risk Management, a fitting moniker, workers say, for the conflict of interest inherent in having the same agency act as the city’s insurer, an adjudicator of workers’ claims, and a drafter of workers’ comp rules.

(Because D.C. Superior Court hears appeals of ORM’s decisions about issues like the need for medical treatment, ORM insists they are sufficiently independent and there is no conflict of interest. However, attorneys point out this still leaves fact-finding in the hands of ORM, as the Superior Court does not conduct hearings or review new evidence.)

In the late 1990s, when the city’s finances were under particular duress, some business and political leaders complained that D.C. was too generous to its injured workers and urged officials to put more stringent limits on potential relief. The Council imposed a few modest reforms to the private sector law but resisted pressure to limit the length of time an injured employee could collect benefits, to the chagrin of the business community and the Washington Post editorial board. “If we’re not interested in being competitive, then we do what we’re doing and we can sit back and complain when businesses don’t come here,” Ward 2 Councilmember Jack Evans lamented at the time.

For public sector workers, meanwhile, things were a mess. Injured employees were increasingly losing their benefits or denied them for arbitrary and conflicting reasons, and others were never given notice before their checks were cut off. For those who did receive notices of termination in the mail, most would say that in ORM’s judgement they were no longer disabled, based on the opinion of the government’s hand-picked medical examiners.

After hearing from many people with similar complaints, attorneys working at the Employment Justice Center, the George Washington University Law School’s Public Justice Advocacy Clinic, and the private firm Miller & Chevalier filed a class action lawsuit on behalf of the publicmsector workers in 2001. The case, Lightfoot v. District of Columbia, was litigated for more than a decade and called for reinstating previously denied workers’ comp benefits and halting future terminations until a fairer process could be installed.

“Nobody was talking about workers’ comp, it was just an invisible issue,” recalls Laura Brown, the former director of legal services at the Employment Justice Center who helped litigate Lightfoot. “There weren’t really many rules that were known. It was like this weird internal system that only people working there knew the rules, and the claimants did not. People’s benefits were being terminated, suspended, modified without notice, and often with little or no input from the worker.”

Duncan Stevens, a former Miller & Chevalier lawyer who also helped with Lightfoot, remembers asking the city for data on how many people saw their benefits terminated between 1998 and 2002. “We asked them, and they didn’t know—they just did not know,” he says. “And we said, ‘How can you not know?’ and they gave us all sorts of answers.”

While the lawyers were successful in bringing more due process to the public sector system, the courts ultimately declined to recognize all the injured workers as a single class. “Members of a class must be treated more or less identically to band together, but the system was so chaotic that you could not say employees had been treated the same,” Duncan explains. “Some got decent explanations [for terminating their benefits], some got no explanations at all.”

Around the same time the Lightfoot case was wrapping up, beginning in 2010, things started to get worse for injured public sector workers at the D.C. Council. Those who had unsuccessfully advocated for caps to private sector workers’ comp in the 1990s found new success with lawmakers curtailing rights for those working for city government. Among other things, the D.C. Council, with the support of the Office of Risk Management, removed the compensability of most emotional and psychological injuries, repealed augmented pay for public-sector spouses and dependent children, removed the ability of an injured worker to choose their own doctor, removed the requirement that courts give legal preference to the opinion of a worker’s treating physician, and instituted a new 500-week cap on receiving benefits. None of these rules existed or exist for injured private sector workers.

Advocates note that most of the Council’s changes came as part of budget support acts, generally with no hearings to debate the proposals, and with very little legislative history to review.

D.C. wasn’t the only place where workers’ compensation was quietly being rolled back. A ProPublica and NPR investigation published five years ago found that between 2003 and 2015, lawmakers in 33 states, largely at the behest of the business community, passed new workers’ comp laws to reduce benefits or make it harder to qualify for them. These measures were often branded as “reform” and pushed on “the false premise that costs [were] out of control.” While the journalists looked at changes across 50 states, D.C. was not included in their survey.

One reason the national degradation of workers’ comp had attracted little attention was because after budget cuts in 2004, the U.S. Department of Labor stopped tracking state workers’ comp laws. Reporters found that the cutbacks in some places “virtually guarantee[d]” injured workers would sink into poverty, and that workers often had to battle insurance companies “for years” to get the medical care their doctors recommended.

J. Paul Leigh, an economist at the University of California, Davis, who has studied workers’ comp, says one change he’s tracked has been the rising clout of doctors, who are charging far more for common procedures than they used to. “As medical costs continue to go up, state legislatures and insurance companies have wanted to restrict the amount spent,” Leigh says. “It used to be roughly 30 percent of workers’ comp went to the doctor, and 70 percent to workers in lost wages. Now it’s over 50 percent going to the doctor.”

When the D.C. Council approved, as part of its Budget Support Act of 2010, a new provision to limit public sector workers’ comp to 500 weeks, lawmakers clarified the clock would start ticking one year after enactment, meaning September 24, 2011. 500 weeks is now a mere six months away, and longtime injured workers are set to be cut off beginning in April 2021. The Council also required that within the final 52 weeks prior to termination, a worker is entitled to a hearing before an administrative law judge to determine if their injuries are permanent.

The Office of Risk Management tells City Paper there are 79 injured workers who have received notice that the 500-week temporary benefit cap would be reached within 52 weeks. Of those workers, ORM says they’ve received on average 1,126 weeks (or 21.67 years) of benefits. 

One of those workers is 65-year-old Laurie Posner, a former paramedic who injured her back and neck several times on the job in the 1990s, requiring multiple surgeries, and again in early 2000, while lifting a patient. Posner couldn’t return to work and was approved for workers’ compensation for her cervical strain. On May 6, the Stafford, Va., resident received a letter informing her that she will be reaching the new statutory cap on April 24, 2021, though she could schedule a hearing.

“I’ve been in chronic pain for years, and if I were cut off I would lose my home, which I’ve had to refinance three times just to stay in it,” Posner says. “It’s not like I’ve paid off my house. I’ve been using my equity to survive on what little I’m making, and if I lost that, I would lose my home, definitely.”

Hal Levi, a local public sector workers’ compensation attorney says that “unfortunately there’s a lot of people out there injured prior to September 2011 who have no idea what’s happening and don’t know what’s going to happen to them next April.” Many workers’ comp beneficiaries lack legal representation and it would be easy to read their termination notice and not understand what it means. “If they reach that 500 weeks next April, they won’t even have a right to a hearing,” Levi adds. “Their benefits will just be stopped.”

Levi’s oldest client was injured back in 1983, some 37 years ago. “Some of these clients are crippled, some are in wheelchairs, one has had a heart transplant,” he says. “They come to me because I’m one of the few lawyers around here who will take on their matters and I feel for them. I really feel they’ve gotten royally beaten down by the Office of Risk Management to get approval for their medical bills.”

***

One of the most striking disparities that has emerged over the last decade between the public-sector and private sector workers’ compensation systems is the notion that public sector workers are no longer eligible for permanent relief from serious workplace injuries. The Office of Risk Management and their lawyers at the Office of the Attorney General claim the D.C. Council did away with this eligibility in a 2015 budget bill,though workers’ compensation attorneys hotly dispute that legislative interpretation.

Council Chairman Phil Mendelson tells City Paper he doesn’t “have much memory” on what the legislative intent was in 2015 and would have to review the committee report. “The only thing I remember is that the disability comp has been very controversial for the public sector system and the Council felt that the Office of Risk Management was not doing a very good job,” he says. “ORM was seen to be more interested in not processing claims as a way of saving the government money, which was not something the Council liked.”

In D.C., like in nearly every other jurisdiction, there are four categories of workers’ compensation, which go by names like “temporary-partial disability”, “temporary-total disability,” “permanent-partial disability,” and “permanent-total disability.”

Temporary-partial is when a disabled worker is seeking treatment but expected to work part-time or at a lower-level job until they completely recover. Temporary-total is when an injured worker cannot work, though could potentially return to their job eventually—this is typically the default classification in D.C. Permanent-partial is when a worker’s ability to earn income is partially impaired from an injury that will never heal, and permanent-total is when a worker can’t earn any future income by performing the work they used to do.

Many workers, like Posner, the former paramedic, have been classified as temporary-total disabled, but have been receiving benefits for decades and effectively treated as permanently disabled. “It’s been a distinction without any real meaning until now,” says Levi.

Posner says she was never told how long her workers’ compensation benefits would last, but ORM informed her in 2003 that she couldn’t return to work as a paramedic. “They told me I would be compensated until I could return, and since I was told I couldn’t return I assumed it would be for life,” she tells City Paper.

To justify their interpretation, the Office of Risk Management points to a budget bill the Council passed in 2015, when lawmakers repealed a provision dealing with so-called “scheduled awards,” or cash settlements granted for certain injuries. The Council also added a new provision clarifying that a public sector worker receiving a scheduled award could no longer receive temporary-total or temporary-permanent disability benefits on top of it.

Two years later, the Office of Risk Management issued new regulations that claimed the Council had thus eliminated permanent-total and permanent-partial disability for public sector workers in 2015, though workers’ compensation attorneys say nothing in the legislative history suggests that was the case. This interpretation however, has had calamitous implications for workers like Esther Layne who cannot return to work and are now learning they are not even eligible to be considered for a permanent extension of their temporary-total benefits, which are newly capped.

In a court filing sent to Layne’s attorney on Dec. 13, the Office of the Attorney General wrote that permanent benefits for public sector workers are “no longer available” since their alleged repeal in 2015, and that the Office of Risk Management’s interpretation of the statute should be “deemed the accurate interpretation” unless there is a clear error.

“The public sector system here has some of the drastic anti-worker features that you find in the reddest states,” says Benjamin Douglas, an Ashcraft & Gerel attorney who represents both public and private sector claimants in D.C., including Layne and Posner.

Levi, who is 73 years old and has been practicing law for more than four decades, says he has watched as the Office of Risk Management and the Council “changed the rules of the game in ways that’ve been very, very damaging” to injured public sector workers.

“We’ve tried to fight it, we’ve tried to challenge it, and up until now, we’ve had very little success in doing either,” he says. “Commenting on rules as they’ve been proposed has done no good. Testifying at the oversight hearings has not done much good. I’ve gotten convinced in past years that ORM just seems to have its way with the City Council, which is very unfortunate.”

One factor that has suppressed the concerns of injured workers is that there has never really been an organized advocacy group speaking on their behalf, aside from a couple of lawyers like Levi. Many are not D.C. residents; some live in Maryland and Virginia or have moved even further away, and never really had the ear of the Council. And for the longtime injured workers who are no longer paying union dues and may never return to work, their plight has never risen to the top of labor’s legislative wishlist, either. In a climate of austerity many unions made the decision to fight for their current members rather than rally on behalf of those who could no longer do their jobs.

***

Robert Newman got into public sector workers’ compensation law through Hal Levi, who he was connected with through a mutual friend. In 2018 the two men went to Councilmember Todd with some proposed changes to the Comprehensive Merit Personnel Act. (Newman is married to Todd’s chief of staff, Sherryl Newman.) This then led to the Injured Public Workers Fairness Amendment Act of 2018, introduced by Todd and At-Large Councilmember Robert White, and co-sponsored by Ward 8’s Anita Bonds and Ward 6’s Charles Allen.

The bill was referred to At-Large Councilmember Elissa Silverman’s Committee on Labor and Workforce Development, which then had jurisdiction over the Office of Risk Management. But it “never saw the light of day” says Newman, who lamented that Silverman never brought the bill up for a hearing.

Silverman’s office confirmed they met with Levi and Newman in June 2018 and felt at the time that they couldn’t fit their bill into the already packed fall legislative schedule before the end of the Council period. Silverman’s office was also concerned that it hadn’t heard from injured workers or their unions about issues with workers’ compensation, and staffers reasoned the underlying issues could be explored further at ORM’s annual performance oversight hearing the following February. In January, however, the agency was transferred to Todd’s Government Operations Committee.

Now, two years later, there are two new bills before the Council, both introduced by Todd.

One bill, which is more sweeping, would seek to make the public-sector system broadly identical to the private sector one. Advocates for this bill, the Public Sector Injured Workers’ Equality Amendment Act, say it will lead to greater justice for city employees, granting them the same rights and privileges as their private sector counterparts. Among other changes, the bill would let injured public sector workers again choose their own doctors, receive benefits for more emotional injuries, be eligible for permanent relief, no longer have to wait for the D.C. government to respond to them before they can file for their own hearings, and make it easier to obtain legal representation by making it easier for lawyers to be reimbursed for their services.

Advocates also point to a racial equity aspect of harmonizing the two systems. According to a recent Economic Policy Institute analysis of Census data, roughly 64 percent of D.C. government employees are Black, and 27 percent are White. In the D.C. private sector, by contrast, 34 percent of employees are Black, and 45 percent are White. And according to statistics about the two workers’ compensation systems gleaned from a Freedom of Information Act request, between 2009 and 2019 public sector workers in D.C. were approximately half as likely to receive permanent-partial disability and nearly 100 percent less likely to receive permanent-total disability than their private sector counterparts. The FOIA data also suggests that the public sector has significantly higher accident rates than the private sector.

“We are really at a workers’ compensation disadvantage in the public sector,” says John Gibson, president of Teamsters Local 639, which represents city government employees like custodians and school grounds workers. Gibson’s union is backing Todd’s bill to equalize the two systems, and while he says the problems have been evident for a while, “it just never really gained traction” before to tackle. “We have heard nightmare stories about people losing just everything because [ORM] drags their feet on processing claims, or they don’t hear the full case, and we just feel they’ve been really partial,” he says.

Brenda Zwack, an attorney representing American Federation of State, County and Municipal Employees District Council 20, which is also in support of the Public Sector Injured Workers’ Equality Amendment Act, says while unions had heard complaints over the years, raising awareness about these rules “was kind of an esoteric legal question,” making it “hard for people to advocate around.”

Though AFSCME and other unions do not negotiate over it, Zwack acknowledges many workers do come to unions with workers’ compensation concerns. “It’s not at the top of AFSCME’s legislative agenda, but we do think [the bill] is the right thing to do because we’ve heard members complain about the system,” she says. “In the broad sense we want to support good things for workers, and AFSCME represents some people working in some of the most dangerous jobs.”

Todd’s second bill, the Public Sector Workers’ Compensation Permanent Total Disability Amendment Act, would propose a narrower fix, clarifying that city government employees are indeed entitled to permanent relief for serious injuries.

This legislation is what Levi and Newman support; they say rushing to put the public sector workers’ comp system under the same rules as the private sector without deliberately studying the tradeoffs between the two could result in losing some aspects of the public-sector system that are currently more advantageous for workers. They argue the more sweeping bill could be more in the interest of attorneys than the workers themselves, and lawmakers should prioritize fixing the permanent disability provision, so those receiving temporary-total disability benefits could remain covered after the cap expires in April.

“My personal belief is this requires a whole lot of study that hasn’t been given to it. I think hearings need to be held and it’s really got to be delved to the point where the Council understands what the pros and cons are,” says Levi. “I’m not using this as a vehicle to try and gain business. I’m going to be retiring soon.”

Levi supports repealing all the changes made to the Comprehensive Merit Personnel Act over the last decade, but he worries there may be some aspects of the private sector system that if adopted wholesale, could actually jeopardize public sector workers. One example he cites is cost-of-living increases, which currently are only permitted in the private sector for permanent disabilities, but the Comprehensive Merit Personnel Act allows increases also for temporary disabilities. Newman suggested the Council form a committee to study the best way to equalize the systems, and then come back and propose legislation.

Robert Preston, a spokesperson for ORM, said the administration’s position on Todd’s bills “will be provided to the Council in the normal course of the legislative process.” Preston maintained that comparing the public and private workers’ compensation system is like comparing “apples to oranges” and argued the two systems have “completely different” orientations. 

Zwack, of AFSCME District Council 20, says she’s “yet to see any downsides” for workers under Todd’s comprehensive reform bill and thinks they’d be “by far better off” if it were to pass. “Council 20 is certainly satisfied, the proposed legislation would be a huge step forward to equity,” she says.

Douglas, the Ashcraft & Gerel attorney who also supports the comprehensive bill, says it “would allow attorneys to fight more for our clients, because we could actually take matters to court when it suits our clients and not just when it suits the Office of Risk Management.” It’s true the Public Sector Injured Workers’ Equality Amendment Act would have fewer constraints on when attorneys could be compensated for their legal services, but Douglas says “that is also how it would help clients get representation.”

The politics are complicated by Todd leaving the Council, but as long as the bills are given a hearing this year, they could then be fast-tracked in 2021, even if they are not voted on in December. Mendelson says he’s had no conversations with his colleagues about these public sector workers’ compensation issues, and advocates haven’t approached him either.

“I think Todd’s hope was to get the hearings done and then if we need, we can find someone else to sponsor it,” says Newman. “In 2018 we had four co-sponsors, so I think we can find one of them to bring it forward.”

Douglas also says he’s not too worried about their legislative prospects. “As for long-term plans, I am optimistic that the Council will get on board with serious reform this year,” he says. “If that does not happen, of course the struggle will continue.”


Mission-driven and worker-driven: Inside the wave of nonprofit organizing

Originally published in Strikewave on May 28, 2020.
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In April, six nonprofits based in the nation’s capital — ranging from the National Women’s Law Center and J Street, to Friends of the Earth and Groundwork Collaborative — announced their plans to unionize with the Nonprofit Professional Employees Union (NPEU), a D.C.-based affiliate of the International Federation of Professional and Technical Employees (IFPTE). Meanwhile, workers at the ACLU of Northern California were laying the groundwork for their own unionization drive, which they announced at the beginning of May. When the vaunted civil liberties organization declined to voluntarily recognize its workers, they quickly filed for an NLRB election.

“A lot of these campaigns were going on before this whole pandemic, but I think the uncertainty has really brought into clear relief the need for a collective voice in both things like safety and PPE when we eventually come back to the workplace, and how funding cuts and all that is going to be dealt with,” said Paul Thurston, the organizing director for IFPTE. “It’s just getting people to the realization that you’re better off in an uncertain situation when you have the ability to advocate for yourself as opposed to whatever your boss dictates.”

Nonprofit workers organizing — and even striking — is not new. Labor unions like AFSCME and SEIU have long seen opportunity for growth in the nonprofit sector, a sector which expanded significantly in the second half of the twentieth century with a predominantly female and highly-educated workforce. Unions even once viewed organizing nonprofits as a central way to slow the privatization of public services; this was in part because they thought if wages went up in nonprofits then public entities might be less motivated to contract out. “In general that hasn’t really happened because nonprofit wages — union or not — haven’t kept pace with government wages,” said Jan Masoaka, the CEO of the California Association of Nonprofits. “And the other motivating factor for contracting — having greater control to hire and fire — has become more important to employers.”

As of 2017, according to federal labor statistics, there were nearly 12.5 million nonprofit workers  across the U.S, working in a range of organizations from hospitals and charter schools, to direct-service providers and museums, to advocacy groups and research institutions. The government does not track union density among nonprofits specifically. But just as there’s been recent momentum for new organizing in sectors like digital media and tech, the college-educated, millennial workforce toiling at nonprofits have taken notice, and inspiration.

“Having done this work for thirty years, I can say the workers we’ve been in contact with recently have more confidence in standing up for what’s right, and demanding their working conditions reflect the values of their own agencies,” said Cindy Schu, the organizing director for Nonprofit Employees United (NEU), an affiliate of the Office and Professional Employees International Union. “I do think a lot of it is coming from an increase in activism among younger workers who are devoted to social change.” In the last six months, Schu’s union has organized five new nonprofits — including a food bank in San Francisco, an organization supporting at risk-homeless LGBTQ youth in Little Rock, and another homeless youth service provider in Seattle. They represent “many dozens” of nonprofits, she said.

Thurston said it’s “been incredible” to see how many nonprofit workers reach directly out to their union, interested in organizing their workplaces to make them more sustainable. “You get into nonprofit work because you’re ideologically-driven, but all of these big nonprofit hubs are in extremely expensive cities and young people are not being given the resources or say in the organization for that sacrifice to make sense,” he said. “The outreach is, ‘I don’t want to quit my job, I love my job, and I want it to be better.’”

Both the NPEU and NEU went through rebrands a few years ago, updating their names so nonprofit employees could more clearly grasp who it is they represent. It appears to be working: the NPEU alone has more than doubled its size from 13 units a year ago to 27 today.

“I think people are more conscious of themselves as workers, and have also realized in the larger economic scheme of things that nonprofits are not special,” said Kayla Blado, the president of NPEU and the director of media relations at the Economic Policy Institute. “They’re still working at a job, they deserve to get paid, and frankly a lot of them are having bad experiences at nonprofits, which purport to be progressive and care about certain issues but the day-to-day can be really difficult and workers face discrimination.”

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Organizing nonprofits often requires different tactics than organizing for-profit companies. Unlike at a fast food corporation, or Amazon, where workers can rally around principles of corporate greed and sky-high profits, many nonprofit workers generally like their jobs, are aware of funding constraints, and want to avoid bringing too much negative attention to their organization.

“It requires a little bit of massaging the messaging to fit the demographic of the folks, which extends to the public-facing campaigns,” said Thurston. “At Kaiser or a power company or Boeing, there’s no problem going ablaze through the media to say we’re doing this, and here’s all the anti-union stuff Boeing is doing. With nonprofits, any kind of bad press could hurt their organization and that’s not really what they want.”

Jeff Farmer, the organizing director at the Teamsters, which represents about 20,000 nonprofit workers, said over the years he’s emphasized to nonprofit staff that unions don’t have to mean an inherently adversarial relationship. “You don’t have to be anti-organization, or anti-employer, to be pro-union,” he said. “You just still want a voice, weeks of vacation, and to be treated like an adult.”

The main reasons cited for organizing nonprofits are often not primarily financial, but are more about increasing transparency, security, and participatory decision making. “People who work in nonprofits understand the economy is precarious and they know even if my job is good it’s not stable,” said Stephanie Luce, a professor at the CUNY School of Labor and Urban Studies.

Workers tend to frame their campaigns around making their organizations stronger, and more capable of preventing costly staff burn-out. Some policies NPEU workers have negotiated for, said Blado, include mandatory racial equity training, standardized pay-scales and tuition reimbursement, good parental leave, retirement accounts, and seats for workers on the board.  “No one is trying to force their workplace to go under for any reason,” she said. “We just want to strengthen the mission of the organization.”

But these demands don’t always sit well with nonprofit management, many of whom see themselves as very progressive — or at least want to be perceived as such. Two decades ago, Masoaka, the now-CEO of California Association of Nonprofits, co-led a project for the Aspen Institute to study how nonprofits have been experiencing the surge in unionization. Masoaka and her colleague interviewed 40 nonprofit executives, trustees, and staff in San Francisco and New York, and found the campaigns can prove particularly contentious, because both nonprofit workers and their employers often have strong emotional investments in their work, and the progressive bona fides of the employers are directly challenged.

Boss resistance generally looks different than the more brazen union-busting tactics from the corporate sector. More common, workers said, is it takes the form of guilt tripping, with management stressing that collective bargaining could mean cuts to staffing, programming, and therefore less services available for their vulnerable clients. Nonprofits are also often dependent on government funding and private foundation support — which managers point out can come with strings that prevent dollars from going to the types of demands workers are making at the bargaining table.

Sometimes managers even worry that donors will be upset by the prospect of a union, if that means donor contributions go less far to serving low-income and vulnerable people. “What we usually say to that is turnover is extremely expensive, and when workers leave, the quality of work goes down,” said Blado, who adds that in her experience many donors have been happy to see their organizations walking the progressive walk.

Paternalistic attitudes from nonprofit employers are also not uncommon, according to organizers. “They’ll say they’re not opposed to labor philosophically, but when their power is challenged it’s a really different story,” said Schu of the NEU. “I’ve seen a patronizing approach where the manager will say, ‘we’re all in this together, we’re a nonprofit and the work itself should be a reward,” added Farmer, of the Teamsters.

As for whether a nonprofit employer is more likely to voluntarily recognize their workers’ union than a for-profit — it depends. There’s certainly more pressure to do so, especially if the threat of bad press awaits. Paul Reilly, who has worked for the Washington-Baltimore Newspaper Guild since 2001, says the nonprofits his union has represented have been more likely to do voluntary recognition. (Disclosure: In 2017, I helped organize The American Prospect, a nonprofit, with the Washington-Baltimore News Guild. Management did voluntarily recognize us.) And nearly all the recent NPEU shops were also voluntarily recognized. Still Schu said in her experience it’s been more common for nonprofits to go through an NLRB election, though they always try and seek voluntary recognition first.

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One area of nonprofit organizing that is genuinely new is political campaigns. The idea has been long discussed among campaign staffers, but because campaign work is so short-term, many established unions didn’t see the investment as feasible. Some unions also thought it could be a conflict-of-interest, because they endorse candidates and questioned whether they could represent the workers of a candidate they may or may not endorse.

“It’s something people have always talked about at drinks after work but no one really does,” said Meg Reilly, the president of the Campaign Workers Guild, which she co-founded in 2017. “We were told no by plenty of unions, so finally we just started our own.”

The Campaign Workers Guild was so successful in the 2018 cycle, representing about 40 campaigns, that now larger unions have hopped on the bandwagon, especially eager to represent the major Democratic presidential candidates. In the 2020 cycle, the International Brotherhood of Electrical Workers represented Elizabeth Warren and Pete Buttigieg’s campaign staff, the United Food & Commercial Workers Union represented Bernie Sanders’s staff, and the Teamsters represented Joe Biden’s. The Biden campaign contract, ratified in early May, includes overtime pay, 100 percent employer-paid health insurance, a six-day workweek, and a union grievance procedure.

The campaigns the Campaign Workers Guild have represented have only gotten voluntary recognition, and Reilly says the pressure is particularly intense on candidates to recognize their workers’ union, because the timelines are so short and the threat of being labeled a union-buster can be such a political nightmare for a Democratic politician. (The Campaign Workers Guild is nonpartisan but has not represented any Republican campaigns to date.)

While that pressure has been helpful, Reilly acknowledges the short timeline can sometimes serve as an obstacle too, since many people join campaigns for what they understand upfront to be exhausting sprints. “Sometimes people resist a union because they want their candidate to win, that’s why they’re working on the race, and so anything they feel could jeopardize that goal they say is not worth it to them,” she said. “Permanent organizations are different, the pressure levers are different. They may be strapped in for a longer fight but also have more time to work and build a stronger organization.”

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Nonprofit workers, unionized or not, are bracing for a turbulent time as the economic recession sinks deeper from the coronavirus. Luce, from the CUNY School of Labor and Urban Studies, said the research has been “somewhat mixed” about how unions fare during a downturn. High unemployment definitely makes it harder for workers to unionize, she said, but sometimes unionization picks up when employees are faced with particularly bad working conditions and unusually stressful expectations.

“The pandemic has certainly hit many of our members hard,” said Schu. “We have members who work in shelters, on the streets, we represent really fragile folks and the services are going to be needed now more than ever.”

One goal for nonprofit unions amid the pandemic, Blado said, is figuring out how to leverage their positions to raise standards for essential workers who might be cleaning their offices, guarding security for their buildings, or simply not able to work remotely.

“Several of our units have bargained with management over ensuring there’s PPE and hazard pay,” said Blado. “We want to figure out how our nonprofit workers who are more privileged and fortunate can support essential workers and show solidarity.” On their list-serves, she added, NPEU has been mobilizing for donations and mutual aid.

Nonprofits are already bracing for money to dry up in the coming year. Reilly of the Washington-Baltimore Newspaper Guild said for those nonprofits that rely primarily on government funding, at least budgets for this fiscal year are already locked in. Next year, he said, is when things could start getting really tough.

“We’re going to see less foundation funding, less government funds, fewer personal donations, less in fees-for-service,” said Masaoka, noting that 37 percent of funding for nonprofits comes from fees-for-service like preschool tuition. “I’ve been wondering how unions are going to fare, and it could go either way.”

How Trump Could Dismantle Workers’ Rights with Another Four Years

Originally published in the April/May/June 2020 issue of The Washington Monthly
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From the perspective of the liberal policy establishment, Donald Trump has launched an aggressive and unprecedented assault on workers’ rights and the labor movement. From the perspective of the right, Trump has governed on labor almost exactly as any other Republican president might have.

“When he was first elected, I ventured his administration might be different from traditional Republicans in a few ways, including in its relations with unions,” Walter Olson, a labor policy expert at the libertarian Cato Institute, said. One of the president’s first meetings in 2017 was with leaders of the building trades, Olson noted. “But in the end, they have been very much in line with what you would have expected from, say, Carly Fiorina.”

In many respects, Trump’s administration has followed in the footsteps of Ronald Reagan and his acolytes, who pioneered the Republican playbook on weakening unions. From stacking his administration with anti-union ideologues to firing more than 11,000 striking air traffic controllers during his first year in office, Reagan set in motion a pro-corporate agenda that Trump has continued to push forward. In case there was any doubt about how the Trump administration regarded the conservative icon’s labor record, in August 2017 then Labor Secretary Alexander Acosta announced that Reagan would be inducted into his agency’s Hall of Honor.

One way Trump has taken aim at unions is through the National Labor Relations Board, or NLRB, which is the federal agency tasked with protecting the rights of private-sector workers and encouraging collective bargaining. Private-sector workers are barred from bringing workplace grievances through the courts themselves, so filing complaints with the NLRB—which has more than two dozen regional offices spread across the country—is how employees can seek redress if they feel their rights have been violated. If an issue can’t get settled at the regional level, it gets kicked up to the agency’s five-person panel in D.C., which issues a decision.

Trump’s NLRB has kept busy, handing down a spate of decisions that align with employer interests and overturn Obama-era decisions. In early 2017 the Chamber of Commerce, a powerful business lobby, published a wish list of 10 policies it wanted to see changed under the Trump administration. In less than three years, the NLRB addressed all 10 items on the list, even going beyond what the lobby requested in some instances. For example, new NLRB decisions make it harder for workers and union representatives to discuss issues on employer property, and give employers more power to unilaterally change collective bargaining agreements. Decisions like these tend to have modest immediate impact but become far more consequential as they have more time to take effect.

“Unfortunately, how the three Republicans on the NLRB seem to view their job is to weaken the law as it pertains to workers’ rights, but also amp up scrutiny of unions and penalties against them,” Lynn Rhinehart, a senior fellow at the left-leaning Economic Policy Institute (EPI), said.

Republicans say the flurry of Trump administration actions is a natural response to what they viewed as aggressive rule making by the Obama administration. “The perception on the Republican side is that Obama hit so many balls across the net, so [the administration] is responding by swatting balls back now,” Olson, the Cato Institute expert, said. “Generally, I think the business community just wanted to get some relief from all the new rules imposed by the prior administration.”

But beyond playing ping-pong with Obama-era dictates, the Trump administration has also been working to hollow out the NLRB. According to an EPI analysis, the number of full-time employees working in the agency dropped by 10 percent during Trump’s first two years in office, including 17 percent fewer regional field staff. Given that the nation’s roughly 129 million private-sector workers can’t bring their grievances through the courts, the fewer NLRB staff available to process their complaints, the fewer opportunities workers ultimately have to get justice.

Perhaps the clearest example of the Trump administration’s attitude toward unions is its treatment of federal workers. Over the past three years, with the strong encouragement of the president, agencies have taken steps to strip federal workers of their union rights and undermine their negotiated contracts.

“I have to admit federal workers have suffered,” Everett Kelley, the national president of the American Federation of Government Employees, said. “We’ve seen federal worker contracts just ripped up and replaced with contracts written by management that had no negotiations at all,” he said. Civil servants have been forced out, Kelley continued, while staff vacancies have been left unfilled.

Last October, the Trump administration instructed agencies to move as fast as possible to restrict unions in federal workplaces. One of the first, practical consequences was that many union reps, who for years had access to government agencies, were no longer welcome inside. In late January, the president took another step, issuing a memo that gave Defense Secretary Mark Esper the power to end collective bargaining for the Pentagon’s civilian workforce of roughly 750,000 people, more than half of whom are in unions. It’s not yet clear what Esper will do with that power.

A second term for Trump would likely bring more of the same, said Donald Kettl, a professor of public policy at University of Texas at Austin and an expert on the federal government. While past Republican presidents have tried to diminish federal unions, he said, few presidents have been as successful as Trump. “He’s skillfully found a way to use these issues to energize the [Republican] base,” Kettl continued, and he’s pursued tactics that don’t require legislative action. Trump has latched on to recurring conservative themes—his “deep state” attacks on bureaucrats are not radically different from Nixon’s “enemies list”—but his push has been “a more focused, concerted, and successful effort than the anti-bureaucracy campaigners have been able to muster in the past,” Kettl said.

If Trump’s first term was focused on making it tougher for workers to unionize, both conservatives and liberal policy wonks agree that a second term would likely mean more attention directed toward regulating gig workers. Generally, gig workers—like Uber drivers—aren’t afforded the protections of traditional employees, like minimum wage, overtime, unemployment insurance, and the right to join a union. Increasingly, though, labor advocates are building a case that many of these workers have been shortchanged; they’re functionally employees and should be protected as such.

It’s clear that the Trump administration disagrees. In one 2019 decision, the NLRB reversed an Obama-era ruling to find that SuperShuttle drivers were independent contractors, not employees. The agency’s general counsel, Peter Robb, another Trump appointee, reinforced that decision, issuing a memorandum declaring the same thing about Uber drivers. That sends a strong message to gig workers to not bother bringing any new cases to the NLRB on this topic.

Meanwhile, blue states have been pushing in the opposite direction. At the start of 2020, a sweeping new law known as AB5 went into effect in California, taking aim at the problem of misclassifying employees as independent contractors. Other states, like New York and New Jersey, are now following suit with their own versions of the law, and the Democrat-controlled House of Representatives passed its own bill in February that similarly would make it harder for employers to classify their workers as contractors. Other states, like Washington, are considering bills to allow for so-called “portable benefits”—where workers, regardless of whether they are employees or contractors, could accrue benefits on a per-hour basis, and these would be fully portable, like Social Security. (The Washington Monthly has championed this idea.)

Rachel Greszler, a labor policy expert at the conservative Heritage Foundation, said that while Republicans are interested in addressing some of the concerns faced by contractors and gig workers, their proposed reforms differ from laws like AB5. She suggested policies making it easier for contractors to pool together to finance their health insurance, using what are known as “association health plans.” Greszler also pointed to universal savings accounts, which would function similarly to employer-administered 401(k) accounts. The Trump administration supports both of these policies and has already taken steps to make association health plans available more broadly.

The decisions already issued by Trump’s NLRB could weaken the impact of California’s new labor law by confusing workers and deterring other states from moving forward with their own solutions. “I think it is probably very confusing to hear that you are not an employee and don’t have a right to collectively bargain under federal law, but that you are an employee for the purposes of California law,” said Sharon Block, an Obama Labor Department official and now a labor expert at Harvard Law School. “When labor rights are more complicated it makes it less likely that they will be invoked. It’s good lawmakers are moving forward in California, but this counter-signal from the federal government could have a chilling effect on workers who might otherwise assert their rights.”

Another four years of Trump, said Shaun Richman, a labor expert at SUNY Empire State College, would mean an even greater effort by the NLRB to try to stop federal labor law from adapting to “the modern workplace.”

“They are closing their minds to the ways that business models actually work, they don’t want the National Labor Relations Act to adapt to the fissured workplace,” he said. “It’s not an exaggeration to say four more years is an existential threat.”

State Workers Seek to Protect Labor Rights As Coronavirus Spreads

Originally published in The Intercept on March 21, 2020.

On Tuesday, a week after declaring a state of emergency due to the spread of Covid-19, Minnesota’s Democratic Gov. Tim Walz signed an executive order pertaining to his state’s 50,000 executive branch employees. The order extended paid leave to all state employees for absences like caring for children due to school closures, and authorized agency heads to waive parts of collective bargaining agreements so as to more easily deploy workers where and when needed. Minnesota law grants the governor such powers during such emergencies.

Publicly, unions representing these workers praised Walz for his action on paid leave, and offered only muted concerns about the collective bargaining measures — stressing they will monitor the situation to ensure employers do not abuse their new authorities.

Privately, though, unions were taken off guard by the governor’s actions, and were unable to get the state to agree to establishing guardrails in the order itself around preventing employer abuse.

Workers are concerned that other states, especially less labor-friendly ones, may follow Minnesota’s lead, and use the pandemic as a pretext to weaken unions in the long term. In California, some employers have been lobbying for a similar executive order, to free themselves of public-sector bargaining restraints. While state employees have made clear they’re committed to flexibly responding to the crisis, unions understand anti-labor managers have wielded emergencies to their benefit in the past.

On Thursday March 12, state union representatives had an in-person meeting with the Minnesota Management and Budget — an agency that governs personnel and finance issues — to check in about the novel coronavirus. In that meeting, which was described as “friendly and nonproductive” by an individual involved who was not authorized to speak about the discussions, union reps talked primarily about paid leave, and also raised concerns around telework, and safety equipment for health and correctional workers.  There was no discussion then of potentially waiving aspects of collective bargaining, and they all planned to meet again on Tuesday, March 17.

But on Monday, March 16, with less than an hour’s notice, the MMB emailed the unions an invitation for a conference call. It was on that call that state officials announced the draft of their forthcoming order, though they did not provide anyone on the call with a written copy of the text.

“It was received as a great surprise,” said one of the participants on the call. “A lot of questions were thrown out, and because we did not have the physical document in front of us, a lot of the questions were just like, ‘What did you say? What’s that phrase?’”

A few hours later union senior staff organized another call among themselves to discuss how to respond. They were less concerned about Walz and far more worried about how agency heads below him might interpret their new broad authorities. Many leaders of individual state agencies have been in charge since Republican Gov. Tim Pawlenty’s tenure, and are not supportive of unions. Under the new order, employers can change schedules, work locations, or work assignments without notice, whereas in the past employees were given a notice period to rearrange their lives.

On Monday evening, union leaders emailed MMB officials and Walz’s chiefs of staff to request the administration publicly commit to “working with union representatives to swiftly and fairly address issues that may come up as a result” of this proposed order. The unions specifically requested a sentence be added to this effect, and that the administration commit to saying this in a press conference.

But all they were able to win was the addition of a vague line saying, “When circumstances allow, Minnesota Management and Budget will work in partnership with the labor unions affected by any adjustments to the provisions of collective bargaining agreements or memoranda of understanding.”

When the executive order was signed on Tuesday, union leaders largely bit their tongues. “We are thankful for the Governor’s action in authorizing this new policy specifically to address COVID-19 leave,” stated the Inter Faculty Organization, which represents employees at Minnesota’s seven state universities. Walz was elected in 2018 with strong union support, and the IFO praised the paid leave measure for “setting the standard for the rest of the nation.”

The executive directors of American Federation of State, County and Municipal Employees Council 5 and the Minnesota Association of Professional Employees also issued a joint statement that recognized the “magnitude” of the executive order. “We won’t stand in the way of the state’s powerful response to the crisis, but we won’t idly sit by if that power is abused,” they said. The unions emphasized they had “worked with the State” to ensure the changes would be only limited to dealing with Covid-19.

In an emailed statement MMB Commissioner Myron Frans said his agency “is working in strong partnership with our union partners during this rapidly evolving emergency situation. We continue to work together with the shared goals of preventing the spread of COVID-19, keeping employees healthy, and providing critical services to the people of Minnesota.”

So far, rank-and-file members have not reacted negatively to the order — and have been focused more on the new expansive rights around paid leave, which they are happy with. Union leaders suspect the rubber will hit the road if and when cases of coronavirus ramp up in Minnesota, and working conditions start to change.

“We’re particularly concerned about things like conditions in prisons, where workers already deal with severe understaffing,” said the union source. And while their grievance procedures are technically unaffected by the executive order, the reality is the standard grievance process doesn’t move quickly enough during emergencies, meaning workers could be left without recourse in the event of employer abuse.

Some unionized state workers in California were recently threatened that their collective bargaining rights were soon to be waived too.

Ashley Payne, a state worker in Contra Costa County, one of the nine counties in the Bay Area, has been increasingly alarmed by the lack of safety protections for workers like herself who have been required to come into the office. She works in her county’s Employment and Human Services division, where she helps administer welfare.

As an elected officer for her union, SEIU Local 1021, Payne has been fielding concerns from colleagues about the lack of hand sanitizer, disinfectant wipes, and masks — including for social workers who have to do home visits.

On Wednesday, Annie Barrett, the division manager for Payne’s department, emailed staffers about working conditions under Covid-19, and said they were “exploring temporary telecommuter opportunities.” Payne forwarded the email to Jeffrey Bailey, her county’s labor relations manager, to say that while her union strongly supports this step, she wants to make it clear in writing that SEIU 1021 does not agree to making this change permanent. “We will not allow the County to exploit this crisis as a pretext for ushering in permanent changes,” she wrote. “We continue to expect timely notice of upcoming changes so we can Meet and Confer over changes to wages, benefits, and working conditions.”

In his emailed response, Bailey agreed the assignment of staff to work from home was temporary, but emphasized that things “are different” under emergency conditions (Emphasis in original).

“Furthermore,” Bailey wrote, “the state of California has informed us that the Governor intends to pass an executive order to temporarily suspend many of the provisions of the MMBA [Meyers-Milias Brown Act, the state law governing public sector collective bargaining] during this emergency period.”

Upon receiving this email, Payne reached out to her local’s leadership, who reached up the chain to the state level. Soon after Rene Bayardo, a lobbyist with SEIU California, emailed to say his team had looked into this threat, and suggested Bailey was wrong. “The indication from the [Newsom] administration is that public employers are asking to suspend MMBA but this is NOT under consideration,” Bayardo wrote.

Payne, who has worked at her job since 2014, said her employer has grown far less responsive to union concerns since the Janus v. AFSCME decision in June 2018. “Knowing what their track record is I’m not surprised they’re trying to bust the union,” she said. Rather than distancing itself from unions during the pandemic, Payne added, local government should lean into “much closer collaboration because we know our work best and we know how best to ensure safety.”

Bailey told The Intercept that he doesn’t have “any direct knowledge” of California Gov. Gavin Newsom’s plans with respect to MMBA. “I heard about it, as we say, ‘through the grapevine,’” he wrote in an email. “This has been discussed widely among public agencies, but I don’t have any specifics or inside information. … We are all assuming that the suspension would apply to things like the meet and confer obligations and notice requirements.”

Crystal Page, a spokesperson with California’s Labor & Workforce Development Agency, said Newsom “has been clear that California needs flexibility to respond” and that he “understands the importance of collective bargaining and the need to ensure workers have a voice on the job.”

Nelson Lichtenstein, a labor historian at University of California, Santa Barbara told The Intercept he hadn’t heard anything about moves to suspend collective bargaining in California, though acknowledged it is certainly not unprecedented for anti-union leaders to try and exploit crises to weaken labor.

Lichtenstein pointed to the aftermath of 9/11, when Congress created the Transportation Security Administration. Using legislative authority, a George W. Bush-appointed TSA administrator denied the 40,000 TSA workers collective bargaining rights, claiming it was necessary for national security. It wasn’t until 2011, under a new Obama appointee, that TSA workers finally won the right to bargain.

Another example was following Hurricane Katrina, when Bush unilaterally suspended federal law governing workers’ pay on federal contracts in areas of Alabama, Florida, Louisiana, and Mississippi. Bush justified his move by calling Katrina a “national emergency” and said ignoring federal rules around construction costs “will result in greater assistance to these devastated communities.”

“People were outraged, it was just so obvious he was using it opportunistically,” said Lichtenstein. About six weeks later, in response to the backlash, the White House reversed course.

Payne said she worries that if labor-friendly California does follow Minnesota’s example, it would quickly motivate many other states to follow, particularly Republican-controlled states. “This is why I feel we have to hold the line,” she said. “If California does it, then everyone else will be like, ‘We should have been doing this a long time ago.’”

Why Environmental Groups Are Urging Congress to Vote Against Trump’s North American Trade Deal

Originally published in In These Times on December 16, 2019.
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While Congressional Democrats made clear that they would not bring the United States-Mexico-Canada Agreement (USMCA) to a vote until it had the backing of the AFL-CIO, support they finally secured last week, Democrats appear comfortable voting on the replacement trade deal that has virtually no support from leading environmental groups.

A House vote could come in the next few days and on Friday December 13, ten environmental organizations, representing 12 million members, sent a letter urging Congressional representatives to vote against the proposed deal, which will replace the 25-year-old North American Free Trade Agreement (NAFTA).

“This final deal poses very real threats to our climate and communities and ignores nearly all of the fundamental environmental fixes consistently outlined by the environmental community,” the letter stated. The groups—which include the Sierra Club, Greenpeace and 350.org—noted that “the deal does not even mention climate change, fails to adequately address toxic pollution, includes weak environmental standards and an even weaker enforcement mechanism, supports fossil fuels, and allows oil and gas corporations to challenge climate and environmental protections.” The groups link to a two-page analysis produced by the Sierra Club that goes into greater detail about what the group sees as the deal’s environmental shortcomings.

House Democrats, meanwhile, have been touting the environmental provisions negotiated in USMCA, insisting they’re both strong and the best they could have feasibly achieved.

According to the environmental news organization E&E News, at a Politico event last week, House Speaker Nancy Pelosi described the USMCA as “substantially better” than NAFTA and said “we are very pleased with the environment [provisions].” While she conceded “we want more,” she stressed, “but we don’t have to do it all in that bill” and praised it for “talk[ing] about the environment in a very strong way.”

Rep. Suzanne Bonamici (D-Ore.), who co-led the House working group focused on environmental trade issues, told reporters at a press conference last week that “this is going to be the best trade agreement for the environment” and cheered its monitoring and enforcement provisions. Rep. Bonamici did not return In These Times’s request for comment.

Back in May, every Democrat on the House Ways and Means Committee, chaired by Rep. Richard Neal (D-Mass.), sent a letter to President Trump criticizing the draft agreement for its language around the environment, including its lack of “any apparent provisions directed at mitigating the effects of climate change.” Now the Committee is championing its work to shape the final text, saying the “revised version will serve as a model for future U.S. trade agreements.”

Having so many members of Congress support this agreement is especially frustrating for climate advocates because, in September, more than 110 House Democrats, including 18 full committee chairs, sent a letter to the president urging the new trade deal to “meaningfully address climate change” and to “include binding climate standards and be paired with a decision for the United States to remain in the Paris Climate Agreement.”

“While Democrats claim this deal improves on some environmental provisions, they have yet to explain how it meaningfully addresses climate change,” said Jake Schmidt, the managing director for the International Program at the Natural Resources Defense Council.

Climate advocates point to the growing problem of “outsourced” pollution—where wealthier countries like the United States and Japan take credit for improving their own domestic environmental standards, while then importing more goods from heavy-polluting countries. Critics say the current draft of USMCA does nothing meaningful to address this problem.

The trade agreement is being hailed for rolling back the Investor-State Dispute Settlement, controversial private tribunals that have enabled corporations to extract huge payments for government policies that may infringe on their profits. But Ben Beachy, a trade expert with the Sierra Club, says the agreement includes a major loophole for Mexico, where oil and gas companies will still be able to sue in those private tribunals.

“The approach the NAFTA 2.0 deal takes is recognizing there’s a problem but then allowing some of the worst offenders to perpetuate it,” he told In These Times. “It’s an unabashed handout to Exxon and Chevron: It’s like saying we’ll protect the hen house by keeping all animals out, except for foxes.”

Beachy says the deal overall “dramatically undercuts” the ability of the U.S. to tackle the climate crisis. “By failing to even mention climate change, it’ll help more corporations move to Mexico, and this is not a hypothetical concern,” he said. “We cannot simultaneously claim to fight climate change on one hand and enact climate-denying trade deals on the other. Do we really want to lock ourselves into a trade deal for another 25 years that encourages corporations to shift their pollution from one country to another?”

Karen Hansen-Kuhn, the program director at the Institute for Agriculture and Trade Policy, told In These Times the final agreement represents an even worse situation for farmers than under NAFTA. “On food and farm issues it’s definitely several steps back,” she said, pointing as an example to how USMCA will make it easier for companies to limit the information they provide to consumers about health and nutrition.

Emily Samsel, a spokesperson with the League of Conservation Voters (LCV), told In These Times that her organization informed members of Congress “that [they] are strongly considering scoring their USMCA vote when it comes to the House floor on LCV’s Congressional scorecard.” LCV was one of the ten environmental groups to sign the letter opposing the trade deal last week.

USMCA does include language requiring parties to adopt and implement seven multilateral environmental agreements, but the 2015 Paris Agreement is not among them. Getting the president to agree to putting anything about climate change or the Paris Agreement was always going to be a tough sell, considering Trump has promised to withdraw from the landmark climate pact. Still, environmental advocates insist House Democrats have real leverage that they should use more aggressively, particularly since getting the trade deal through Congress is Trump’s top legislative priority for 2019.

Democratic supporters of USMCA say the existing language is good enough for now, and that it will position the government well for when Trump is out of office. A spokesperson for Nancy Pelosi told The Washington Post that “the changes Democrats secured in USMCA put us on a firm footing for action when we have a President who brings us back into the Paris accord.” Earlier this year 228 House Democrats voted for a bill to keep the U.S. in the Paris Agreement.

U.S. labor groups have thus far remained mostly silent on the concerns raised by environmental organizations.

The International Association of Machinists and Aerospace Workers, which opposes the deal on labor grounds, did not return request for comment on the USMCA’s environmental provisions. The Communications Workers of America released a statement on Friday saying the deal includes some “modest improvements” for workers over NAFTA, but a spokesperson for the union told In These Times, “We don’t have any comment on the environmental provisions.” The BlueGreen Alliance, a national coalition which includes eight large labor unions and six influential environmental groups, has issued no statement on the trade deal, and did not return request for comment.

And the AFL-CIO issued a statement last week praising the deal, though noted “it alone is not a solution for outsourcing, inequality or climate change.” A spokesperson for the labor federation did not return request for comment.

Ending GM’s Two-Tiered Labor System is UAW Members’ Top Demand — And Part of a Bigger Fight Against Worker Classification

Originally published in The Intercept on September 26, 2019.
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Since last week, nearly 50,000 GM workers have been on strike, in part against a two-tiered system enforced by the auto giant that leaves “temporary” workers doing the same jobs as permanent staff for substantially less pay and fewer benefits.

The striking workers, represented by the United Automobile Workers union, or UAW, are demanding a defined path to “permanent seniority” for GM’s temporary workers — who make up about 7 percent of GM’s U.S. workforce. GM has also entrenched inequality in its ranks by contracting out some jobs, like custodial work, that were traditionally staff roles.

“I work right across from a temporary employee who’s been there for two and a half years,” Chaz Akers, a Michigan-based autoworker who has worked at GM for 3 1/2 years told Reuters. “I install the passenger side headlight. He installs the driver side headlight. I make more money than he does. I have better health insurance than he does. It ain’t fair. It ain’t right. If you’re going to pay people to do a job, pay them all the same.”

The workers’ demands are part of a broader push against worker misclassification, a tactic used by employers to lessen their labor costs. The fight has been playing out most aggressively in California, where Democratic Gov. Gavin Newsom signed a sweeping bill last week to transform the lives of workers in his state. The law — known as AB5 — sets strict limits on who can be classified as an independent contractor, rather than an employee, and is the most serious legislative threat to the gig economy in years. The law also provides new momentum for advocates considering similar reforms in other states.

Coming to an agreement on temporary workers has become the most difficult issue in the GM-UAW negotiations, according to the Detroit Free Press. Both sides are reportedly holding strong to their positions. The Free Press also reported that resolving questions around temp workers was union members’ top request when UAW leadership surveyed them last year.

Protests of temporary workers by the UAW is “not a brand-new development” said Jake Rosenfeld, a sociologist at Washington University in St. Louis and author of “What Unions No Longer Do.” “But it does seem really foregrounded now in the union’s complaints, and that seems new. These classification disputes, from my perspective, seem to be growing and tracks on to the same battles over classification in California with Uber and Lyft.”

GM, like Uber and Lyft, is pushing back against the workers’ demands by claiming that such “flexible” workers are necessary for its business model. Right now, GM is trying to convince permanent, full-time workers to accept raises and more job security in exchange for freedoms around temps.

For example, GM has reportedly proposed a boost to the company’s profit-sharing formula, financial gains that would only go to permanent, full-time employees. GM workers typically earn about $1,000 for every billion in GM’s North American pretax profits. In 2018, eligible employees earned payments up to $10,750.

Temporary workers, who often do the same work as traditional employees, are paid less, entitled to fewer benefits, and are easier to get rid of. “That’s a trend that we’re seeing all over the economy as companies try to shed conventional, full-time employees in favor of independent contractors, subcontracted workers, or franchised employees,” said Alexander Hertel-Fernandez, a political scientist at Columbia’s School of International and Public Affairs. “The difference with the auto manufacturers is that their temporary workers are covered by the UAW and its contracts, unlike in most other sectors of the economy.”

In 2007, under pressure from the financial crisis, UAW leaders agreed to a two-tiered contract, in which new GM hires would be paid at lower rates than workers hired before. To get out of this arrangement, widely deemed unfair, the union negotiated a new contract in 2015, in which new hires would still have lower starting salaries, at $15 an hour, but could “grow into” the full UAW hourly wage of roughly $30 an hour after eight years. Union leaders — citing GM’s clear improved financial position with billions of dollars in profit — now want to shorten that process, under the basic principle of equal pay for equal work. GM and the UAW did not return requests for comment.

GM’s current arrangement with temporary workers is one of several ways that employers have managed to fissure their workplaces over the last few decades, said Nelson Lichtenstein, a labor historian at the University of California Santa Barbara. Another example is by spinning off portions of their companies, like in the 1990s, when GM spun off its parts factory, Delphi. “What that meant was all of a sudden, Delphi was competing with lots of other non-union companies and went bankrupt [in 2005] and so then, of course, in the bankruptcy proceedings, you manage to transition to lower wages,” Lichtenstein said. Another way is by contracting out custodial staff who used to be company employees.

“In the auto industry, janitors used to be employed by the auto companies and got the same wages as autoworkers,” he said. “In fact, autoworkers would often become janitors as they got older because it was easier labor and still good pay,” said Lichtenstein. “Eventually, all the companies said, ‘OK, janitorial work is not part of our core business — we’ll just outsource it.’”

In general, there has been an upward trend in companies like GM moving toward temporary workers. In 1990, according to the Bureau of Labor Statistics, 42 percent of all temp workers in the U.S. were in clerical positions, compared with 28 percent of temp workers in the manufacturing and industrial sectors. But by 2000, just a decade later, 47 percent of all U.S. temp workers would be working in the manufacturing and industrial sectors.

The UAW, for its part, has a record dating back to the early 1980s of negotiating concessions around labor costs if economic conditions sour, with the understanding that if the company’s fortunes improve, those concessions would be phased back out, Lichtenstein said.

GM, Ford, and Chrysler all say that they may need to increase their use of temporary workers in the future, pointing to the fact that they’re competing with non-union foreign manufacturers that have more temporary workers and lower labor costs. In June, the Los Angeles Times reported that workers at rival auto plants run by Toyota, Nissan, and Honda make $50 an hour in wages and benefits, while GM workers cost $63 an hour. Temporary workers make up about 20 percent of the Japanese automakers’ plants.

A former GM temp worker, now in a skilled trades apprentice program, told Michigan’s public radio station last week that being a temp was one of the worst times of her life. “They have a way of pitting you against a permanent employee where you feel like, if you go the extra mile, if you work a little bit more than your union brother or sister, that will give you an opportunity to eventually get hired in full time and that’s not the case,” she told the radio station.

Lichtenstein believes it’s clear that these two-tiered systems are weakening labor organizations. “And it’s not just a humanism or good-feeling thing,” he said. “It’s also a recognition that this is going to divide and then destroy the union.”