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Labor Report

Honoring the Legacy of Justice Ruth Bader Ginsburg

On September 18, 2020, the United States of America lost one of the greatest legal minds and most dedicated humanitarians in the nation’s history. More than that, American women and American workers lost a devoted, relentless, and intellectually brilliant advocate.

Ruth Bader Ginsburg served our Constitutional Republic for 27 years as an associate justice of the Supreme Court of the United States and many decades before that as a litigator specializing in causes of equality. There is no greater calling. I am deeply saddened by her passing but remain hopeful and confident that her legacy will continue to inspire future generations as we strive to fulfill our nation’s promise.

 In these last several days, we have heard numerous accounts and seen numerous examples of Justice Ginsburg’s genteel disposition, a trait that perhaps belied her dogged determination to fight the good fight. She showed us that these qualities do not contradict. Rather, they are complementary. It is better to disarm our enemies with kindness and win them over with wisdom.

Among many memorable “RBG” quotes, perhaps this one expresses that notion the best: “Fight for the things that you care about. But do it in a way that will lead others to join you.”

Justice Ginsburg not only spoke those words, she lived them. When she enrolled in Harvard Law School in 1956, she was one of just nine women in a class of 500. Today, women account for more than half of all American law school students. Justice Ginsburg’s mere presence advanced the cause of women’s equality, a theme that would pervade her later work.

In the 1970s, she became the first-ever female tenured professor at Columbia University. She also co-founded and directed the American Civil Liberties Union’s Women’s Rights Project, arguing six landmark gender discrimination cases before the Supreme Court and winning five of those cases.

From the bench, Justice Ginsburg advanced the labor movement and workers’ rights, often by authoring dissenting opinions that articulated the flawed judgement of the Court’s majority. She fought against employee misclassification and mandatory waiver clauses that deprive workers of the right to sue their employers. She scrutinized court decisions that reduced the liability of employers in cases of harassment.

She once said of her life’s work, “I see my advocacy as part of an effort to make the equality principle everything the founders would have wanted it to be if they weren’t held back by the society in which they lived.”

By that measure, Justice Ginsburg surpassed our founding fathers. She did not allow the conventions of her time to dictate her moral compass. She pursued higher ideals and will always be remembered on the right side of history.

-- Senator Tartaglione

Federal Court Ruling on PA Business Shutdowns and Gatherings Remains in Effect Pending Appeal

The Pittsburgh-based federal judge who declared some of Governor Wolf’s pandemic policies “overreaching,” “arbitrary,” and unconstitutional earlier this month, has rejected the administration’s bid to stop the decision from taking effect pending an appeal.

Federal Building“U.S. District Judge William Stickman of the Western District of Pennsylvania denied Wolf’s request to stay his decision from last week that entered judgment for several counties, businesses, and state officials who are challenging Wolf’s order that shut down ‘non-life-sustaining’ businesses and placed restrictions on gatherings,” The Legal Intelligencer reported.

“According to Stickman, Wolf’s orders violated the First Amendment, as well as the due process and equal protection clauses of the 14th Amendment.”
Wolf’s statewide business shutdown order was rescinded prior to the court ruling, but the limitations on gatherings to 25 people for indoor events and 250 people for outdoor events remain in place. The administration maintains that the court ruling does not impact the restriction that businesses may operate at no more than 50 percent of normal capacity.

In County of Butler v. Wolf, four Pennsylvania counties, several businesses, and several individuals, including federal and state legislators, sued the Governor and Secretary of Health Rachel Levine claiming they deprived the plaintiffs of due process and equal protection, and that they violated the federal “taking clause” that protects private property from uncompensated government seizure. The plaintiffs also claimed that the administration violated the freedom of association ensured by the First Amendment.

“Stickman determined that the limitations on gatherings were arbitrary and not tailored in a sufficiently narrow manner, and that the decisions Wolf’s administration made regarding which businesses were ‘life-sustaining’ were also arbitrary and changed several times throughout the pandemic,” the Intelligencer reported.

In an analysis of the administration’s chances on appeal, Spotlight PA reported that Stickman’s ruling “leans heavily on precedent that hasn’t been invoked or respected since the early 1900s, according to some legal experts.”

“Even those who were less critical [of the ruling] questioned if the decision accomplished anything, because it primarily deals with restrictions that are no longer in effect, and they doubted it would be upheld on appeal.”

Worker Advocates Skeptical of Newly Proposed US Labor Department Classification Rule

The U.S. Department of Labor has introduced a rule proposal that could further erode the rights of self-employed workers and those in the “gig economy,” while potentially giving employers more leeway in denying workers rights such as minimum wage and mandatory overtime pay, and benefits such as health insurance and paid leave.

Department of Labor“Under the proposal, the Department of Labor – which has the power to investigate worker complaints about misclassification – said it would adopt a few guidelines to test whether workers should be considered employees or contractors,” The Washington Post reported.

“This test would assess whether a worker is truly in business for themselves, like a contractor, or whether they are economically dependent on their employer, as an employee. It would also examine the degree of control a worker has over their work, and whether their earnings came from their initiative or investment.”

In aftermath of the rule proposal announcement, U.S. Secretary of Labor Eugene Scalia wrote for Fox Business, “our rule aims to simplify, clarify, and harmonize principles the federal courts have espoused for decades when determining what workers are ‘employees’ covered by minimum wage and overtime pay requirements.”

U.S. Rep. Bobby Scott of Virginia, chairman of the House Committee on Education and Labor, disagreed in a statement posted to his website: “The pervasive trend of employers misclassifying their employees as independent contractors … strips workers of basic wage and hour protections, leaves law-abiding businesses at a competitive disadvantage, and robs state and local governments of billions in lost revenue. Unfortunately, the Department’s proposal would leave workers even more vulnerable to misclassification by upending long-standing guidance on who is considered an employee.”

The Nation’s New Unemployment Claims Rose Slightly Last Week, Signaling Sluggish Recovery

Looking for a jobThe nation’s first-time unemployment claims rose slightly during the week ending September 19 and have hovered just below 1 million for eight consecutive weeks, signaling that the economy continues to struggle in its recovery from the COVID-19 pandemic. The U.S. Department of Labor released the latest weekly jobless figures on September 24.

About 870,000 people filed initial claims for traditional Unemployment Compensation (UC) for the week, which was 10,000 more than initially reported for the prior week and 4,000 more than the prior week’s newly adjusted figure (866,000). Meanwhile, another 630,080 Americans filed initial Pandemic Unemployment Assistance (PUA) claims. So, nearly 1.5 million people filed for some form of government benefits for the first time.

The lead economist with Oxford Economics told CNN, “The jobless claims data paint a picture of a labor market recovery that’s struggling to maintain momentum.”

Continuing UC claims (those workers who have filed for traditional UC benefits for at least two weeks in a row) totaled 12.6 million for the week ending September 19, a slight decline from the prior week.

“As of September 5, 26 million Americans [were receiving] some form of benefits from the government,” CNN reported. “On the bright side, that number is down 3.7 million from late August.”

“But unfortunately, the complexities of joblessness during the crisis mean it’s just not that simple. The number of people in the Pandemic Emergency Unemployment Compensation program [PEUC] – those are workers who have exhausted their state benefit programs – has increased, for example.”
“It’s once again hammering home that this jobless crisis isn’t over even as the economy is chugging along on its long path to recovery.”

State Unemployment Rate Ranking

(August 2020; National rate: 8.4%; Source: USBLS)

Rank State Aug. 2020 Rate Monthly Diff. Annual Diff.
1 Nevada 13.2 (1.0) 9.4
2 Rhode Island 12.8 1.5 9.3
T-3 Hawaii 12.5 (1.0) 9.8 *
T-3 New York 12.5 (3.4) 8.6
5 California 11.4 (2.1) 7.5
T-6 Massachusetts 11.3 (4.9) ** 8.5
T-6 New Mexico 11.3 (1.4) 6.5
8 Illinois 11.0 (0.5) 7.2
9 New Jersey 10.9 (3.3) 7.4
10 Pennsylvania 10.3 (2.2) 5.8
T-11 Delaware 8.9 (1.6) 5.0
T-11 Ohio 8.9 (0.1) 4.7
T-11 West Virginia 8.9 (1.1) 4.0
14 Michigan 8.7 0.0 4.7
T-15 Tennessee 8.5 (1.2) 5.1
T-15 Washington 8.5 (1.7) 4.3
17 Connecticut 8.1 (2.1) 4.4
18 Mississippi 7.9 (1.5) 2.4
19 Oregon 7.7 (2.7) 4.1
T-20 Kentucky 7.6 3.1 3.3
T-20 Louisiana 7.6 (1.8) 2.7
T-22 Alaska 7.4 (4.2) 1.2
T-22 Arkansas 7.4 0.3 3.8
T-22 Florida 7.4 (4.0) 4.4
T-22 Minnesota 7.4 (0.2) 4.2
26 Missouri 7.0 0.1 3.8
T-27 Kansas 6.9 (0.3) 3.8
T-27 Maine 6.9 (3.0) 4.0
T-27 Maryland 6.9 (0.9) 3.3
30 Texas 6.8 (1.2) 3.3
31 Colorado 6.7 (0.7) 4.1
32 Wyoming 6.6 (0.5) 2.9
T-33 New Hampshire 6.5 (1.5) 3.9
T-33 North Carolina 6.5 (2.0) 2.7
35 Indiana 6.4 (1.5) 3.2
36 South Carolina 6.3 (2.4) 3.8
37 Wisconsin 6.2 (0.9) 2.8
38 Virginia 6.1 (1.8) 3.4
39 Iowa 6.0 (0.8) 3.2
40 Arizona 5.9 (4.8) 1.3
41 Oklahoma 5.7 (1.4) 2.4
T-42 Alabama 5.6 (2.3) 2.8
T-42 Georgia 5.6 (2.0) 2.3
T-42 Montana 5.6 (0.9) 2.1
45 North Dakota 5.0 (1.6) 2.6
T-46 South Dakota 4.8 (1.6) 1.5
T-46 Vermont 4.8 (3.5) 2.4
48 Idaho 4.2 (0.9) 1.3
49 Utah 4.1 (0.4) 1.6
50 Nebraska 4.0 (0.9) 0.9
*Designates largest year-over-year increase
**Designates largest month-to-month decrease