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Labor Report

Worker Protections Curtailed Under NLRB’s New Joint-Employer Rule

On the same day that the all-Republican National Labor Relations Board formalized a new joint-employer standard that curtails labor law protections for franchise employees and contracted workers, attorneys general in 17 states and the District of Columbia filed suit to block the measure.

The NLRB published the final rule in the Federal Register on February 26. Also that day, Pennsylvania Attorney General Josh Shapiro joined his counterparts to file a lawsuit in the Southern District of New York claiming that the new rule “is arbitrary and capricious under the Administrative Procedure Act,” Bloomberg Law reported.

“The Labor Department’s rule would limit the circumstances in which multiple businesses can be liable under the Fair Labor Standards Act for failing to pay minimum wages and overtime,” the news agency reported. “McDonald’s and AT&T’s DirecTV are among the companies that have faced questions over joint-employment liability in recent years.”

The rule lays out a four-part test for determining whether a company should be defined as a joint employer of an employee. The four factors are whether the company hires or fires the employee; supervises or controls work schedules; sets pay rates; and maintains employment records.

“The Final Rule will increase the prevalence of outsourcing, subcontracting, and other sorts of fissuring in Plaintiffs’ jurisdictions by permitting companies to shed their legal liabilities under the (Fair Labor Standards Act) through these sorts of arrangements,” the lawsuit claims. “Outsourced and subcontracted employees on average are paid less than directly-employed workers.”

The final rule differed from a version previously proposed by the NLRB in a key area, according to Politico: “The final rule contains the caveat that ‘contractually reserved control’ – that is, an employer’s reserved right to control employees on paper – can be considered corroborating evidence to establish that an employer is a joint employer. The proposed rule had said that joint employers must ‘possess and actually exercise’ control.”

Nonetheless, former Democratic NLRB Member Wilma Liebman called the final rule “the most restrictive test the board has ever employed,” Politico reported.

The NLRB’s rule follows a new, similar joint-employer policy released by the U.S. Department of Labor in January. Bloomberg Law described the DOL measure as “an interpretive regulation, as opposed to the formal rule the NLRB issued. Interpretive regulations typically do not get as much deference in court as a formal rule, which carries the force of law.”

Target Warehouse Workers Mount Campaign to Become Company’s First Union

Workers at a Target warehouse in Perth Amboy, New Jersey, are leading a campaign to organize what would become the first local union in the 58-year history of the nation’s eighth-largest retailer.

Earlier this month, warehouse organizers wrote a letter to Target’s CEO and chief human resources officer demanding that the corporation allow union representatives to access the job site to speak with employees, and that the employer refrain from anti-union tactics, according to

“We are writing to urge you to commit to a fair process to allow the employees at the Target Flow Center in Perth Amboy, New Jersey, to decide to join a union free of intimidation,” the letter stated in part.

Organizers at the 500-worker facility have been in contact with the Laundry, Distribution, and Food Services (LDFS) Joint Board, an affiliate of the Service Employees International Union (SEIU). LDFS represents about 8,500 workers in New York, New Jersey, and Connecticut.

Among the workers’ complaints are frequent firings, steep production quotas, and flex scheduling.

“These workers tell us there’s a very high rate of employee termination, and people complain about extreme temperatures and prison-like conditions. It’s a mill. There’s an urgent need for e-commerce workers to organize,” an LDFS official told the website.

Target has about 360,000 employees and operates about 1,800 stores as well as a growing e-commerce business to compete with other major online retailers like Amazon and Walmart. The Perth Amboy location opened in 2017.

The company made has made headlines in recent years for raising its minimum wage from $10 an hour to the current $13 rate, with a goal to reach $15 by the end of this year. Its wage floor is higher than Walmart’s $11 rate, but trails Amazon’s $15 rate.

Yet, Target is equally renown for its staunch anti-union stance. In 2011, workers at a Valley Stream, New York, tried to create a local affiliate of the United Food and Commercial Workers, but they lost a contentious unionization vote. The company responded to their organizing campaign by producing and distributing a controversial anti-union video, according to The Guardian. Three years later, the company made workers watch another similar video titled “Think Hard: Protect Your Signature.

In 2015, nine Target pharmacy workers in Brooklyn voted 7-2 to join the UFCW, but the company challenged the result in an NLRB filing. Soon after, Target sold its pharmacy business to CVS.

U.S. Soccer Blames Women’s Players Union, ‘More Rigorous’ Male Competition for Pay Disparity

The United States Soccer Federation (USSF) insisted in a new court filing that gender discrimination has played no role in alleged pay disparities between its World Cup champion women’s national team (WNT) and its non-qualifying men’s team.

In fact, the USSF refused to concede that a gender pay gap exists.

Yet, the non-profit governing body pointed to “more rigorous competition” encountered by the men’s team, as well as the teams’ collective bargaining agreements, to explain differences in how squad members are compensated.

On February 20, the USSF filed a summary judgement brief in the U.S. District Court in Los Angeles in response to the court’s certification of about 50 women’s national team players as a class to pursue claims under the Equal Pay Act and Title VII of the Civil Rights Act, according to Reuters.

Previously, the USSF argued that the women couldn’t litigate as a class because the team’s top stars made more money than the top players on the men’s team. A judge rejected that theory, “reminding the Federation (and the world!) that it’s discrimination when women have to work twice as hard as men or achieve twice the success of their male colleagues to receive equal pay,” the news agency reported.

In its new filing, the federation reiterated the claim that it paid more to women’s team members than men’s team players during the period covered in the lawsuit (starting in 2015).

“U.S. Soccer also argued that men and women on their respective national teams aren’t actually doing the same work because male players have to be faster and stronger and face more rigorous competition,” Reuters reported.

Further, the federation placed blame on the women’s own union, “which negotiated a collective bargaining agreement that traded potential bonus money for perks like paid childcare and salary guarantees.”

U.S. WNT star Alex Morgan is listed as the lead plaintiff. The original lawsuit was filed last March and claims that the USSF also discriminated against women players “by denying them at least equal playing, training, and travel conditions; equal promotion of their games; equal support and development for their games; and other terms and conditions of employment equal to the MNT.”

Last July, the Washington Post published a detailed analysis of how and how much national team players are paid, as well as the potential influence of revenue streams created by the two national teams. The U.S. won the Women’s World Cup tournament in 2015 and 2019. The U.S. men failed to qualify for the 2018 Men’s World Cup and won one out of four games in the 2014 event.

Kitchen Workers Face Tough Conditions, Little Security as Gig Economy Expands into Restaurants

At the request of a news reporter, New York-based restaurant worker Zia Sheikh kept a diary for three weeks to document his efforts to earn a living through “Pared,” a gig economy app that lets eateries hire freelancers like Sheikh to fill single open shifts.

Through the worker’s writings and a follow-up interview, the Washington Post documented how physically and emotionally difficult, and how unrewarding restaurant and gig economy work each can be.

“Other professions have hard, unappreciated lives: teachers, cops, firefighters, nurses. But they have health insurance, 401(k)s, severance … unions, pensions. We have none of that,” Sheikh told the newspaper. “Athletes get used up, too, but they have the chance at million-dollar contracts. We just get used up. There’s no quality of life while we work. And no quality of life promised after we retire. It’s all take and no give. It’s a broken system that breaks us, too.”

The 37-year-old worked 18 days or nights at various restaurants and private affairs in and around the city over three weeks. His weekly averages were about 42 hours and $755.43 in gross earnings. He also logged about two hours a day commuting to and from job sites. His average hourly earnings, calculated by the Post as $17.64, were 18 cents above the Living Wage Calculator for New York published by MIT.

“When demand is down, Sheikh makes as little as $150 a week with Pared,” the newspaper reported.

The app debuted in San Francisco in 2017 and has expanded to New York, Philadelphia, and Washington. Sheikh, who has worked in the restaurant industry since 2003 and managed kitchens in New York and Philadelphia, began using the app last May. He has worked more than 160 gigs at over 70 sites, earning about $19,000 in 1,156 total hours “as a prep cook, line cook, event cook, and dishwasher.” He has worked nine gigs through other apps, but mainly works only through Pared.

To help himself and his colleagues deal with the emotional demands of the work, he founded Restaurant After Hours, a nonprofit group focused on mental health.

“Academic studies and industry surveys routinely flag immense personal woes for restaurant workers, including addiction, depression, exhaustion and insomnia,” the Post wrote. “A 2015 study by the Substance Abuse and Mental Health Services Administration, a government agency, found that food-service workers had the highest rates of substance-use disorders and third-highest rates of heavy alcohol use of all job sectors.”