Monday, March 16, 2020

Liz Watson: Coronavirus Prevention That Works For Working People

It should not take a terrifying national emergency for us to wake up to the realization that we all pay the price when we treat people like they don’t matter.
America isn’t ready for coronavirus. In the last 24 hours, millions of school children across the country have been told to stay home for two weeks, or even longer. This is an important public health step to stop the spread, but it also means parents can’t go to work. 
I’m fixing lunch for a 9 and 12-year-old as I write this. And I’m one of the lucky ones who is able to telecommute. Millions of Americans are not so lucky. 
In addition to the countless schools and businesses that are moving to telecommuting or closures, we’re also hearing from the CDC that if you are sick you should stay home, other than to seek medical treatment. 
Likewise, the nearly 90 million Americans who are uninsured or underinsured are already sick with worry that if they contract the coronavirus they won’t be able to get treatment. 
This pandemic threatens to go from very bad to a whole lot worse simply because of our chronic disinvestment in the health and economic security of millions of Americans. The level of danger and risk we now face is directly related to our policy failures. 
Democrats in Congress are moving as fast they can on a policy response to the coronavirus that puts our health and safety first with paid sick days, enhanced unemployment insurance, food security, strong protections for frontline workers, widespread and free coronavirus testing, anti-price gouging protections from surprise medical billing, and increased capacity for the medical system. 
The reality is that these are all things that progressives have spent a very long time fighting for--guaranteed health care, paid sick days and family leave, an end to surprise medical billing, and a strong social safety net. Republicans, on the other hand, have blocked them at every turn. 
And now we’re seeing the fallout from Republican indifference to low-income and middle-class families in real-time: A Pennsylvania man and his young daughter were recently evacuated from Wuhan, China. When his daughter started coughing, they did the responsible thing and went to the hospital to get checked out. They were quarantined for a few days and ultimately tested negative for the virus. When the medical bill for $3,918 arrived, he was stunned.  Almost 40 percent of people in the U.S. can’t afford a $400 emergency bill, let alone nearly $4,000. How many times has this scene played out already at kitchen tables across America? 
Just the other day, a family member told me her prescriptions were filled by a pharmacy tech who sneezed her way through the transaction. When asked why she didn’t go home to rest, the pharmacy tech said, "They won't let me." How many vulnerable people were exposed to cold or flu, or potentially worse, by that one pharmacy tech? Seven in ten low-wage workers can't take time off to go to the doctor when they are sick or stay home from work without putting their jobs on the line. This is playing out in restaurants, stores, and yes, even pharmacies all across America.
When the 2008 recession hit, we engineered a massive bank bailout. If we can bail out the banks in a matter of days, we can provide guaranteed health care and workplace protections that our fellow Americans need to stay healthy and avoid getting the rest of us sick. We’ve also got to learn the lessons of 2008 and make sure we bail out the people who need it most.  The economic stimulus should focus on low- and middle-income families, not tax giveaways or poorly structured bailouts that help Wall Street but leave Main Street in the dust. 
When it comes to a highly contagious virus-like COVID-19 (or the flu for that matter), we’re all in this together. We have to make it possible for everyone to actually follow the CDC’s advice. That’s why Congress and the Trump administration must take action to ensure everyone can get tested, everyone has the guaranteed health care they need to get treated, everyone can stay home if they or a loved one are sick, and everyone can survive an economic slowdown. 
It should not take a terrifying national emergency for us to wake up to the realization that we all pay the price when we treat people like they don’t matter. Medicare for All, paid family leave, universal child care, a robust social safety net. These things are not a wish list. They are essentials. Now is the time to put the basic foundation in place that will make us all safer and more secure in good times, and more resilient when disaster strikes. 
Liz Watson is the executive director of the Congressional Progressive Caucus Center. She is the former labor policy director of the House Education and Labor Committee and a former Democratic nominee for Congress in Indiana’s 9th Congressional district. 

National Labor Relations Board (NLRB) Temporarily Closes Offices in Manhattan, Detroit and Chicago

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Temporary Closure of Three Regional Offices Due to Possible COVID-19 Exposures

Effective immediately, the National Labor Relations Board’s offices in Manhattan, Detroit, and Chicago will be closed temporarily while an employee in each of these offices is tested for COVID-19. The Agency is taking this step to ensure the health and safety of our employees and the public.
Telework-ready employees in these offices were previously scheduled to telework on Monday, March 16. Under today’s announcement, all employees in these offices will telework until notified otherwise. Regional personnel will continue to handle unfair labor practice investigations and processing representation petitions. All hearings scheduled in these offices for Monday, March 16 are postponed. Additional guidance regarding future hearings and elections will be issued tomorrow (Monday). Parties should continue to e-file documents, as required by GC- 20-01.
Individuals needing immediate assistance from Region 2, Manhattan may contact Region 29, Brooklyn at (718) 330-7713
Individuals needing immediate assistance from Region 7, Detroit may contact the Grand Rapids Resident Office at (616) 456-2679
Individuals needing immediate assistance from Region 13, Chicago may contact SubRegion 30, Milwaukee at (414) 297-3861
NLRB Leadership continues to monitor and assess the impact of COVID-19 on Agency operations and will continue to keep our staff and the public informed of any developments.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.

Saturday, March 14, 2020

Harford County Public Schools in Maryland Close For Two Weeks But Will Be Providing Meals For Students

Harford County Superintendent of Schools Dr. Sean Bulson talks about precautions the school system is taking and condsidering during a news conference Monday afternoon in Bel Air.
(Matt Button / The Aegis/Baltimore Sun Media)
Harford schools treating 2-week coronavirus closure like ‘summer break,’ will arrange to feed students starting Tuesday
by S. Wayne Carter, Jr., THE AEGIS,  Baltimore Sun, March 13, 2020

An instructional packet will be sent home with Harford County Public School’s students today and the school system plans to begin providing meals for students in need starting Tuesday, as school systems around Maryland figure out how to determine student needs as schools close for two weeks starting Monday to stem the spread of the novel coronavirus.

Specifics on where food services will be provided was still being determined by midday Friday, Harford Schools Superintendent Sean Bulson said. HCPS is using its summer meals program as a basis but will build off that to make sure they reach more students.

“We have some sites where we deliver food that addresses places with the highest concentration of students [receiving] free and reduced meals but it doesn’t really cover the whole district,” Bulson said. “We’ve mapped out where all of our students are in the county, and so we’re just coming up with creative ways to make sure we get food to as many of them as possible.”

Bulson said the school system is planning to operate during the two-week period the same way it would during summer break.

“Essentially, our 12-month employees work — at the school level that means principals, 12-month secretaries, assistant principals and custodial staff. It’s the majority of Central Office,” he said.

Eleven-month employees, which includes school psychologists, may be asked to work during that time. A notice from the school system said they should await further instruction from their supervisors. Ten-month employees, which includes teachers, will not report to work starting Monday.

“Our teachers are not working during this break until we get some other direction,” Bulson said.

All 10- and 12-month employees will continue to be paid during the closures, according to the notice from the school system.

Beyond that two weeks, though, school system officials still have plenty of questions, including how 10 days schools are closed between March 16 and March 27 are going to count against the 180 days of instruction that are required.

“We don’t know if we’re going to need to make them all up; if they’re going to be treated like snow days where we make up the ones we can and then apply for a waiver, because we also don’t know how long this is going to be,” Bulson said. “We have a window, but we suspect there will be a reassement period at the end.”

So, central office staff will spend much of the next two weeks planning for all of those eventualities, he said.

“If we return in two weeks, what will that look like? How will we provide the service? There is a chance we’ll be dealing with high absentee rates, both in staff and students, if some people are concerned about returning. That’s something we’ll have to be prepared for,” Bulson said.

Should the closures be extended longer, HCPS staff is working on how to better deliver instruction to students.

“Our preliminary plans are very general just to keep kids working a little bit, but they aren’t really focused as we would hope to keep kids moving forward in the curriculum,” Bulson said.

Packets sent home with students Friday and available on the HCPS are not intended to introduce any new material, “it’s just to keep kids’ minds active,” Bulson said.

Instructional services staff started developing the packets on Wednesday, “but our hope was to be able to distribute them by today, but we thought we were doing it in anticipation of a later closing,” Bulson said.

The work was expedited once school system’s learned Thursday that the closures would begin next week and the print shop worked until 5 a.m. Friday to produce that packets so that each student would receive a hard copy, because the school system doesn’t have data regarding internet availability for all students, he said.

“We wanted to make sure everybody was able to bring something home,” Bulson said.

Teachers were not asked to produce any of the materials, but that may change if closures are extended.

“If this extends longer, we’re going to need to have a clearer instructional plan and that’s something we’ll be working very aggressively during this two-week closure," he said.

The school system is also working toward finding ways to pay its per diem employees, such as long-term substitutes, home and hospital teachers, and some food service workers, who typically wouldn’t get paid during inclement weather or similar closure.

“If possible, we want to make sure people don’t have these big gaps in income if we can help it," Bulson said. "That’s the spirit we’re approaching this with, but we still have some problem solving to do and figuring out who is affect so we can make sure we’re doing everything we can to make sure our employees don’t suffer as well.”

During the closure, all buildings and school buses will be cleaned and disinfected, according to an email from Jillian Lader, a spokeswoman for the school system.
Wayne Carter is a senior content editor in the Baltimore Sun Media Group's community newsroom, overseeing The Aegis and The Record in Harford County, where he grew up. Wayne previously was the editor of the Carroll County Times, where he worked for 12 years. He graduated from Salisbury University in 2002.

Resources For Information on the Coronavirus and Higher Education

From Inside Higher Ed:

Coronavirus and Higher Education

Roundup of news about how higher education is coping with initial U.S. impacts of the coronavirus outbreak, and how colleges are preparing for a dizzying array of likely disruptions.

Paul Fain
March 6, 2020

This week U.S. colleges grappled with the initial impacts of the novel coronavirus outbreak in this country, even as they continued to deal with complications over international travel and to prepare for a dizzying array of likely disruptions in coming weeks and months.

The Centers for Disease Control and Prevention on Sunday issued guidance recommending that colleges “consider” postponing or canceling student foreign exchange programs and asking students to return to the U.S.

Many institutions have canceled spring break trips and study abroad programs in China, Italy, South Korea and other countries where large numbers of people have COVID-19, the disease caused by the virus. That trend accelerated throughout the week. New York University, for example, canceled all nonessential international university travel.

However, the vague wording in the CDC statement confused many in higher education. Some college leaders, for example, wondered if the guidance applied to foreign exchange students hosted by U.S. institutions as well as Americans studying abroad.

Some clarity came Tuesday when the president of NAFSA: Association of International Educators issued a statement saying the group had confirmed with the CDC that the guidance was not intended to apply to international students studying in the U.S.
Meanwhile, 76 percent of U.S. colleges said last month that recruitment of students from China has been affected by the coronavirus, according to the results of a survey the Institute of International Education conducted in February. Among responding institutions, 70 percent said they were evacuating students from China. And 94 percent said study abroad programs in China had been canceled or postponed.
Domestic Travel and Conference Cancellations
More than 210 U.S. cases of the virus had been confirmed by Thursday afternoon, with 12 deaths. Most of the cases were on the West Coast, and almost all the deaths have been in the Seattle area. So far California, Washington and Florida have declared states of emergency due to concerns over the coronavirus.
Some college officials have begun preparing for limitations on domestic travel.
The University of North Carolina at Chapel Hill was among the first to restrict university-affiliated travel for students, faculty and staff members to locations in the U.S. where a state of emergency has been declared related to the coronavirus. The university also strongly discouraged personal travel to these areas.
“Given the rapidly changing nature of the virus, if you choose to travel to these affected areas you may be asked to undergo a 14-day self-quarantine off-campus upon return,” the university said in a statement.
Brandman University on Thursday announced that faculty and staff members were "generally prohibited" from traveling by air to conduct university business -- both domestically or internationally -- through the end of April. The Massachusetts Institute of Technology this week suspended international travel on MIT business for all students and employees. The institute asked all community members to log any travel outside of the state in a travel registry.
MIT also this week said any in-person MIT event with more than 150 likely attendees between now and May 15 must be canceled, postponed or converted to a virtual gathering.
Many higher education-related organizations faced uncertainty about conferences they were scheduled to host in coming weeks and months. Some have made the call to cancel or take precautions for those who might attend.
The American Physical Society on Saturday announced that it would cancel its annual meeting, which had 10,000 expected attendees and was slated to begin Monday in Denver. Some attendees had traveled long distances to get to Denver, sparking criticism on social media about the late cancellation notice.
On Sunday, Educause canceled its meeting on advanced learning technology that had been scheduled to begin Monday in Bellevue, Wash. And Ellucian, a higher education software firm, on Tuesday canceled its Ellucian Live 2020 event in Orlando, Fla., instead offering a free online version to 2,700 expected attendees.
Organizers of the ASU GSV Summit, which is scheduled to begin in San Diego at the end of March, announced this week that the conference would conduct mandatory temperature screenings for all attendees. The summit also will not admit attendees from China, South Korea, Iran or Italy and will “strongly encourage” a no-handshake policy -- a move likely to spread across higher education.
More Guidance From Feds, ACHA
Traditional-age college students face relatively low risks of dying from COVID-19, which is considered most dangerous for people over 60.
Yet college campuses could play an outsize role in helping to spread the coronavirus, given their dense concentrations of people, heavily used public spaces and large numbers of frequent travelers. Colleges also employ older faculty and staff members, and officials were scrambling this week to minimize health risks posed even to younger students.
The CDC and the American College Health Association both released guidance this week about how college campuses should prepare.
The guidelines from the CDC included how to update emergency operations plans, share information with employees and students, make decisions about canceling classes or events, and preserve safe housing and meals.
The ACHA focused on preparations for student health centers, including how to triage and isolate possibly infected patients. The group's guidance also covered protective equipment for health-care workers, procedures for cleaning and disinfection, and how to prepare for a surge in demand for student health center services.
Several college students already have been exposed to the coronavirus while working in clinical settings and are in quarantine.
A group of students from Lake Washington Institute of Technology in Washington State has been self-quarantined at home after possible exposure. Some are nursing students who, along with four professors from the institute, visited a long-term nursing facility where seven residents have died from COVID-19. Lake Washington closed on Wednesday after a faculty member tested positive for the virus, and will remain shuttered through the weekend.
After a student at Yeshiva University tested positive for the virus, the university on Wednesday shut down its Washington Heights and Midtown campuses in New York City until next week. And Washington State's Everett Community College closed for "deep cleaning" through the weekend after a student was diagnosed with the virus.
Likewise, public health officials directed four students at California’s Los Rios Community College District to self-quarantine after they performed medical duties and came in contact with a patient who later tested positive for the virus.
The U.S. Department of Education also issued new guidance Thursday with a focus on financial aid policies for students who experience disruptions due to the coronavirus.
The department, which last week said it was forming a coronavirus task force and launched a site Friday for college and school officials, explained how to comply with financial aid regulations a well as adding new temporary flexibility, the National Association of Student Financial Aid Administrators said in a written statement.
Some of the department’s guidance dealt with possible disruptions to the Federal Work-Study program. It also seeks to help colleges more quickly offer online education options to cope with disruptions to courses and academic programs.
“While some institutions would normally have to go through an approval process with the Education Department to use or expand distance learning programs, the Education Department is providing ‘broad approval’ to accommodate students ‘on a temporary basis’ without going through that process,” NASFAA said. “It is also allowing accrediting agencies to waive their review requirements for offering distance education for institutions that may need to do so to accommodate students impacted by the spread of the coronavirus.”
Both the department and the CDC also this week addressed stigma and discrimination related to the coronavirus.
The department cited news reports about stereotyping, harassment and bullying of people who are perceived to be Chinese American or of Asian descent, including some students.
“Ethnic harassment or bullying exacerbates hatred, harms students and is never justified,” Kenneth L. Marcus, the department’s assistant secretary for civil rights, said in a written statement. “These incidents can create a climate of misunderstanding and fear. This hurts all of us.”
March Madness Without Fans?
The National Collegiate Athletic Association this week announced that it had convened a panel of health experts to help while the NCAA considered “all circumstances” in contingency planning for the virus.
Those scenarios include possibly holding its March basketball tournaments without spectators, Donald Remy, the NCAA’s chief operating officer, told Bloomberg. The men’s tournament brings in more than 80 percent of the NCAA’s total revenue of more than $1 billion, mostly through TV deals.
The National College Players Association said in a statement that the NCAA and colleges should act quickly to help protect athletes. “There should be a serious discussion about holding competitions without an audience present,” the group said. “The NCAA and its colleges must act now, there is no time to waste.”
Several colleges and universities have begun limiting the travel of intercollegiate sports teams. Chicago State University and the University of Missouri at Kansas City canceled men’s basketball games that had been scheduled this week at Seattle University. Chicago State also canceled basketball games with Utah Valley University.
Kean University went a step further on Wednesday, canceling out-of-state travel next week for five athletics teams during the university’s spring break. Kean made the move out of an “abundance of caution,” news outlets reported.
"This is consistent with the university's recommendation for the entire campus community to postpone spring break travel to limit possible exposure to COVID-19, avoid travel disruptions and reduce the risk of needing to self-quarantine upon their return," a spokeswoman for the university told
Campus Preparations Ramp Up
Most colleges and universities appeared to have kept busy with their own planning and preparation amid the flurry of action by the CDC and federal government.
The University of Washington, for example, was preparing for scenarios of a possible escalation of the outbreak.
“Everything is on the table for us because we are really cooperating incredibly closely with the public health agencies in Seattle,” said Denzil Suite, UW’s vice president for student life. “We are not either predicting or precluding any course of action at this point.”
Many institutions have had coronavirus task forces in place for weeks or months. And colleges are publicly posting a wide range of information for students and employees.
Dr. Mark S. Schlissel, the University of Michigan’s president and a medical doctor, said Wednesday that the university has instructed students about recommended protocols for washing hands, covering sneezes and coughs, and socially isolating themselves if they think they’ve been exposed to the virus or might have it.
The university is publishing daily updates to a COVID-19 information page on its website.
“There’s a huge amount of uncertainty and a lot of concern,” Schlissel said. “We’re looking at it every single day and asking ourselves, ‘What is the right thing to do?’”
-- Several reporters and editors at Inside Higher Ed contributed to this article.

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Thursday, February 20, 2020

Kevin R. Brock: Roger Stone, Andrew McCabe and The Danger of A Double Standard of Justice

Roger Stone
A tale of two lies: Stone, McCabe and the danger of a double standard for justice

America is now officially more confused than Boris Johnson’s barber.

President Trump’s campaign adviser, Roger Stone, was arrested by an FBI SWAT team, tried and convicted for lying to Congress and messing with a witness, and nearly had a book the size of a blue state thrown at him at sentencing. Meanwhile, Andrew McCabe, the fired FBI deputy director who, while in his official capacity, lied under oath in violation of a federal statute, won’t be charged by the Department of Justice (DOJ) for any criminality. Go forth, Andrew, and make more money as a CNN analyst.

What seems confusing is really becoming quite plain to all of America: Those on one side of the political aisle are feeling the heat of the justice system, while those on the other side are not. It’s kind of like political “stop and frisk” enforcement: “Hey, Republican, what are you doing in this neighborhood? Up against the wall. Let’s see what we can find on you that we can take to court.”

Yet, while frisking, the enforcers ignore the well-heeled looters behind them, destroying records, selling pay-for-play access, seeking Russian propaganda for political dirty tricks, lying to Congress and the FBI — all activities which, to date, seem consequence-free.

Stop and frisk is a perilous policy, whether practiced on the street or for political advantage. It exposes the justice system to unconstitutional overreach and perceptions of an unfair two-tiered approach to certain citizens.

Most don’t know Roger Stone from Roger Ramjet, who was popular long ago, when Stone started practicing political sleaze for Richard Nixon. Oh, we’re somewhat aware that Mr. Stone is mixed up in the whole Russia-Trump collusion thingy, but not many of us are exactly sure what he did wrong.

What he did wasn’t good. He blatantly and provably told lies to Congress, and he meddled with another potential witness. Both are foolish with a capital “F.” Some Stone supporters are claiming his trial was rigged by an Obama-appointed judge and a Democratic apparatchik moonlighting as the jury foreman. Well, shame on Stone’s counsel for not Googling the foreman, but that argument ultimately won’t hunt. Justice Clarence Thomas and a jury of Young Republicans would have had to convict him on the considerable evidence.

So shed no tear for Roger Stone. He’s a lifelong political hack, and who among us objects to political hacks spending some time in prison orange? His main mistake was not being a senior executive of a large law enforcement or intelligence agency, where you can lie under oath but not much happens to you. Sorry, Roger, you’re just a party operative. You don’t get those courtesies.

But even political tricksters, painful as it might be, deserve considerations of fairness, and Stone’s case raises some troubling questions.

It is well-established case law that a defendant cannot be convicted on evidence that was wrongfully collected by law enforcement. The interesting and equitable question is whether Congress and, subsequently, the special counsel had a sufficiently justifiable reason to investigate Stone in the first place. The same question can be asked regarding those other Trump campaign associates George Papadopoulos and Carter Page, former Trump national security adviser Michael Flynn, and possibly Trump campaign manager Paul Manafort.

The DOJ inspector general’s sterile report notwithstanding, I don’t believe — based on considerable experience conducting and managing counterintelligence investigations — that McCabe and fired FBI director James Comey had sufficient legal basis to open the original FBI investigation, particularly one to target U.S. persons, and from which flowed the prosecution of Stone. There is a reasonable chance that U.S. Attorney John Durham may reach the same conclusion as a result of his investigative efforts.

That original FBI investigation was subsumed by special counsel Robert Mueller who determined that the ostensible reason for starting the investigation — namely, collusion between the Russian government and the Trump campaign — didn’t actually exist.

In other words, there is a strong argument that the government had no legal basis or right to reach out and frisk Roger Stone in the first place and subsequently place him in a position of legal peril of the government’s making.

Roger Stone shouldn’t have lied. If lying is not confronted always and everywhere, we have no credible system of justice. But, equally, it is at least plausible that he was wrongly placed in a position to lie absent a legal reason to confront him. That erodes faith in our justice system just as much.

The decision not to charge or prosecute Andrew McCabe has conservatives rending their garments across the country. It is, admittedly, a jarring and puzzling juxtaposition to the whole Roger Stone and Michael Flynn episodes.

In the middle of all of this is Attorney General William Barr, who seems to have been forced into a three-dimensional chess game given the mess he inherited from the special counsel and a president whose tweets do indeed make Barr’s job harder. (Contrary to some opinion spinners, the president cannot say anything he wants simply because he’s the nation’s top law enforcement officer. No one in law enforcement leadership has that liberty, including the president. The risks to due process are too great.)

Barr’s past week was breathtaking. He rightfully questioned the unprecedented sentencing sought by Stone’s prosecutors after being blindsided by them. He promptly suffered the indignity of being labeled the president’s lapdog, with calls for his impeachment. A few days later, his department declined prosecution of McCabe, one of the president’s most reviled targets. If he was ever on the presidential lap, he just got booted off.

And that may have been part of the strategy regarding the McCabe decision. The Democrats want a discredited Barr; they want him perceived as doing the president’s bidding. That way, Durham and his whole investigation, which probably won’t turn out well for their party, becomes discredited as well. Exonerating McCabe throws a wrench into that calculus and helps protect Durham’s efforts.

Besides, Barr may have been persuaded that there are greater legal jeopardies awaiting Mr. McCabe as a result of Durham’s investigation, and so the prosecution declination for lying was made more palatable.

Others have speculated that the president’s tweets about McCabe made a successful prosecution less likely. Perhaps; I’ve seen prosecutors chicken out for lowlier reasons. But it’s hard to believe that would be the ultimate driver behind the declination.

Another possibility is that Andrew McCabe and DOJ reached a deal based on his cooperation with ongoing inquiries. McCabe’s public statements on CNN following the DOJ declination, however, would seem to downplay that possibility, at least on its face.

But he logically would be motivated to cooperate especially after his former boss, James Comey, publicly threw him under the bus during one of Comey’s town-hall spa treatments on CNN. The firing and loss of full pension for both McCabe and former FBI official Peter Strzok sounded “just about right” to the disgraced former FBI director. Don Corleone couldn’t have distanced himself from his “made men” any better. 

The dangerous perception, however, is that we truly do have a dual system of justice, an unequal application of law and penalty. This we cannot afford. This we must fight against every day. The attorney general’s chess game cannot end in checkmate to the politically motivated who like a double standard, two-tiered system just fine.

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.

Monday, January 13, 2020

National Labor Relations Board Revises Pro-Union Employer-Employee Relations

Huge Setback as Labor Board Revises Joint Employer Standard

Last week was a dark week at the National Labor Relations Board (NLRB). In a series of major and somewhat unexpected split decisions, the Board overruled five significant pro-worker precedents and set in motion the undoing of the Board’s election rule. These decisions touch upon major aspects of the employer-employee relationship, including employer handbooks, when two or more employers can be considered a joint employer, what constitutes an employee bargaining unit, and when companies can make unilateral changes in a contract. In each instance, they tilt the already employer-friendly balance heavily in favor of employers. 

These precedents took years to develop, and the results of many have not yet become evident. So, why the rush to overturn them by last Friday? The following day, on December 16, Chairman Miscimarra’s term expired. It appears that rather than consider these important matters in a deliberate and proper process that meets the purposes of the National Labor Relations Act (NLRA), they were rushed through in order to avoid a temporary lapse in a conservative majority. Years of carefully considered decisions by the Obama (and Bush) Labor Boards have been undone in a week, with the result that workers who have traditionally faced an uphill path to organizing and bargaining collectively will have even less power.

In 2014, the NLRB made a public announcement that it was considering revising its joint employer standard. At that time, the number of workers at temporary agencies reached an all-time high of 2.87 million and was expected to reach 4 million by 2022. Many of these workers ostensibly work for an employment agency, but they are placed by and actually work for another company. During the period when the number of temporary employees grew, the NLRB incrementally made it more and more difficult to determine that two companies constituted a joint employer. 

As a result, when these temporary employees—and sometimes permatemps—wanted to form a union, many of them would find that only their staffing agency was required to bargain with them, and not the company that co-determined many of their terms of employment. This was because employees had to prove that the putative joint employer exercised “direct and immediate” control over employment matters.1 

Even when employees were able to meet this high bar, they would then have to show that the control was not “limited and routine.”2 Therefore, such unionization efforts were often fruitless, because an important player in the employment relationship was absent.

So, in late 2015, in a decision called Browning-Ferris, the NLRB created a new joint employer standard that more accurately determined who constituted an employer. The decision stated that “We will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry.” In determining whether two employers are joint employers, the Board would look at the management structure and the relationships between the companies’ supervisors and HR managers; how decisions regarding hiring, discipline, and termination are made; how wages and benefits are set; the types of training conducted; how work processes are governed; and other terms of the agreements regarding employees between the two entities.

Browning-Ferris took a clear-eyed approach to how power works in the relationship between a staffing agency and the company it staffs. It acknowledged that reserved power and control is still power and control, and that in reality, many of these companies controlled and determined the wages and terms of employment for their temporary workers.

Therefore, Browning-Ferris created a two-part test to determine if two employers were joint employers: first, the Board would ask if there was a common-law employment relationship with the employees in question. If there was such a common-law relationship, then the Board would look at the specific facts of the case to determine if the putative joint employer “possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”
Business groups were outraged by the new Browning-Ferris test and worked diligently to try to get it reversed by whatever means possible. They argued that the NLRB’s new test was something that all businesses should be concerned about and that it would kill major aspects of the American economy. However, despite the parade of horribles predicted by the business community, the Board applied the new rule in a measured way, and the sky did not fall. In the two years since the Browning-Ferris decision, there have been nine decisions throughout the country by Regional Directors of the NLRB that have used the new test in a joint employer analysis. These cases involved the relationships between construction companies, security and detention guards, casino employees, and employees in the airline industry.
In four of those decisions, the Regional Director found that a joint employer relationship existed. In three of those decisions, the Regional Director found no joint employer relationship. And in three of the decisions, the airline employers argued that they were joint employers in order to argue that they were under the Railway Labor Act and not the NLRA, but the issue was found to be irrelevant. During the two-year period, only one Board case made a determination regarding the joint employer relationship, when it found that a construction company and staffing company were joint employers.3
Despite the lack of any negative effects stemming from the Browning-Ferris decision, in its December 14 Hy-Brand decision, the NLRB overruled its precedent and returned to the previous standard. The decision was a surprise for several reasons. First of all, other than political considerations, there was little reason to reconsider Browning-Ferris so soon. Second, the Hy-Brand case involved the question of two companies acting as a single employer, not joint employers. Indeed, the parties in the case never asked the Board to reconsider its Browning-Ferris precedent, because it did not matter for the disposition of the case. Third, the Board did not solicit briefs or otherwise make the public aware that it was reconsidering Browning-Ferris so that its decision could be fully informed by all interested parties. The dissenting Board Members explain that “not surprisingly, a deeply flawed process leads to a deeply flawed result.” Unfortunately, we already know what the results will be from the Board returning to its previous standard: workers will continue to have little voice in the workplace.
Airborne Express, 338 NLRB 597, fn. 1 (2002).
TLI, 271 NLRB 798, 799 (1984).
Retro Environmental Inc./ Green Jobworks, LLC, 364 NLRB No. 70 (2016).

Trump administration rolls back Obama era 'joint employer' rule
The White House has formally rolled back one of the Obama administration's most ambitious attempts to rewrite federal labor law to benefit unions, the so-called joint employer rule.
The Trump administration on Sunday said that businesses shouldn't be held liable for violations by other companies if all they share is a corporate brand.
The Obama administration had sought to make franchiser corporations such as McDonald's legally responsible for workplace violations by their franchisees, even if the latter were legally independent businesses. The previous administration based this on the theory that a corporation was a "joint employer" with the other company even if the former only had "indirect control" over the latter company's policies.
Trump administration has been working to roll back the "joint employer" rule since President Trump took office. The Labor Department on Sunday issued an official rule that corporations were only liable when they had "direct control" over the other company's policies. The administration clarified that to be joint employers, both businesses had to be able to: hire or fire an employee; have control over their work schedule; control the workers' pay; and maintain the workers' employment records.
"This final rule furthers President Trump’s successful, government-wide effort to address regulations that hinder the American economy and to promote economic growth,” said Labor Secretary Eugene Scalia. The rule will go into effect in 60 days.
Business groups had staunchly opposed the Obama administration effort, saying it would push many corporations out of franchising altogether rather than risk the additional liability. Unions had cheered the Obama rule since it made corporations more vulnerable to pressure campaigns and organizing efforts.
The Trump administration said the Obama administration's "indirect control" standard was far too vague.
"The changes in this final rule break down barriers that keep companies from constructively overseeing, guiding, and helping their business partners,” said DOL Wage and Hour Division Administrator Cheryl Stanton.
The National Labor Relations Board, the main federal labor law enforcement agency, late last year, settled a long-running "joint employer" case against McDonald's Corporation by announcing the company was not a joint employer with its franchise restaurants. The case had been launched in 2013 by the Obama administration.