Monthly Archive: March 2013

Mar 25

NLRB Appeals to Supreme Court

 

The National Labor Relations Board (NLRB) announced on March 12, 2013, that it had decided it will not seek en banc rehearing of the Noel Canning v. NLRB decision. (Noel Canning Div. of Noel Corp., D.C. Cir., No. 12-1115, action announced 3/12/13).  In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the January 4, 2012, recess appointments of three members to the Board were invalid.  After consultation with the Justice Department, the Board announced its intention to file a petition for certiorari with the Supreme Court to review the Noel Canning decision.

The Noel Canning court held that President Obama’s appointment of three members to the Board did not comply with the requirements of the Recess Appointments Clause.  It has been widely observed that the D.C. Circuit’s decision calls into question hundreds of decisions rendered by the National Labor Relations Board over the past year.  If the Supreme Court affirms the lower court’s decision, all of these decisions would appear to be invalid.  NLRB Chairman Mark Gaston Pearce vowed to fight the court’s decision shortly after the D.C. Circuit released its opinion. Chairman Pearce issued a statement that the NLRB “believes that the President’s position in the matter will ultimately be upheld.”  In the interim, Chairman Pearce announced that the Board will continue to fulfill its statutory mandate and issue decisions.  Although the Board’s decision has met with a fair amount of criticism, Chairman Pearce appears unfazed by calls that the Board should abide by the Circuit’s decision.

The Labor Board has until April 25th to file its petition for certiorari.

Mar 20

President Obama Nominates Thomas Perez as Labor Secretary

 

President Obama has nominated Thomas E. Perez as the next Secretary of Labor.[1] If appointed, Perez would replace former Secretary Hilda Solis, who stepped down in January,[2] and Acting Secretary Seth Harris.[3]

Perez has served as the Assistant Attorney General for the Civil Rights Division of the Department of Justice since 2009.[4] The son of two Dominican immigrants, Perez paid for college by working as a garbage collector and a warehouse worker,[5] later graduating from Harvard Law School.[6] Before becoming an Assistant Attorney General, Perez was Maryland’s Secretary of Labor for two years.[7] He had also served on the Montgomery County Council, giving him experience in local, state, and federal government at the time of his nomination.[8] While running the Civil Rights Division, Perez oversaw several initiatives that received widespread attention. The Division blocked voting rights laws in Texas and South Carolina, leading the U.S. District Court for the District of Columbia to strike down the Texas law requiring voters to present photo identification.[9] The Division also undertook unprecedented investigation into 17 police and sheriff’s departments.[10]

Obama’s nomination of Perez drew the expected reactions from various interest groups and politicians. Richard Trumka, president of the AFL-CIO, said, “[a]t a time when our politics tilts so heavily toward corporations and the very wealthy, our country needs leaders like Tom Perez to champion the cause of ordinary working people.”[11] James P. Hoffa, president of the Teamsters, praised Perez as “a fighter,”[12] and Mary Kay Henry, president of SEIU, called Perez’s nomination “an excellent choice.”[13] On the other side of the ideological spectrum, Republican Senator Jeff Sessions called Perez the “wrong man for the job,” criticizing his stance on immigrant labor.[14] Even before the official nomination, Republican Senator Charles Grassley said that Perez would have to answer questions about the Civil Rights Division’s role in a housing discrimination case in Minnesota.[15] Other Republicans soon joined in that scrutiny.[16]

During his announcement of the nomination, Obama pointed to Perez’s rich background in government and his strong history of defending civil rights.[17] He reiterated the familiar claims that a “top priority as President is doing everything we need to do to make sure that we’re growing our economy and that we’re strengthening our middle class,” and that his administration is dedicated to “mak[ing] sure that hard work actually pays off in a decent living.”[18] After applauding the Department of Labor for its work under Solis as Secretary, Obama alluded to Perez’s former role as Maryland’s Secretary of Labor, where “he helped implement the country’s first statewide living-wage law, because he understood that a minimum wage should be a wage that you can live on.”[19]

The President’s latter comment and his nomination of Perez might signal an attempt at real change to the federal minimum wage under the Fair Labor Standards Act. Obama announced his intention to raise the minimum wage to $9.00 by 2015 in his February, 2013 State of the Union address,[20] and his nomination of Perez is an encouraging, though tentative, first step in such a direction. Even the mention of a living wage in the President’s announcement shows an awareness of the minimum wage’s inadequacy, with the relative value of the statutory minimum falling steadily since the 1960s.[21] Although a meaningful increase to the minimum wage would be daunting politically for any Secretary, Perez would at least have the political experience from Maryland’s government to serve him.

In addition to that goal, Perez devoted some of his time as Maryland’s Secretary of Labor to combating the misclassification of workers as independent contractors.[22] The Department of Labor has considered stopping employers’ misclassification of workers a priority for several years now, beginning a deliberate initiative against it in 2011[23] and announcing a broad survey on the subject early in 2013.[24] In other words, Perez might be the right person to lead the federal agency into a new era of support for workers’ rights. If that is to be his role, he will likely face the wrath of the conservative end of a highly dysfunctional Congress, his first taste of which will be his confirmation hearings. If he survives that and gains the title of Secretary, many will be watching to see if he lives up to the President’s stated hopes.


[1] Remarks by the President Announcing the Nomination of Thomas Perez for Secretary of Labor, The White House, Office of the Press Secretary (Mar. 18, 2013), http://www.whitehouse.gov/the-press-office/2013/03/18/remarks-president-announcing-nomination-thomas-perez-secretary-labor [hereinafter Remarks by the President].

[2] Mark Lander & Steven Greenhouse, Solis Stepping Down as Labor Secretary, N.Y. Times, Jan. 9, 2013, http://www.nytimes.com/2013/01/10/business/solis-stepping-down-as-labor-secretary.html?_r=0.

[3] See Remarks by the President, supra note 1.

[4] Sari Horwitz & Lena H. Sun, Obama to Nominate Thomas Perez as Labor Secretary, Wash. Post, Mar. 10, 2013, http://articles.washingtonpost.com/2013-03-09/politics/37574465_1_voter-id-law-labor-secretary-civil-rights.

[5] Remarks by the President, supra note 1.

[6] Horwitz & Sun, supra note 4.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Peter Baker, Obama Nominates Justice Aide for Labor Post, N.Y. Times, Mar. 18, 2013, at A11, available at http://www.nytimes.com/2013/03/18/us/politics/obama-to-nominate-thomas-e-perez-as-labor-secretary.html.

[12] Id.

[13] President Obama Makes Right Choice for DoL Secretary, SEIU (Mar. 18, 2013), http://www.seiu.org/2013/03/president-obama-makes-right-choice-for-dol-secreta.php.

[14] Evan Perez et al., Labor Pick Assailed for Housing-Bias Deal, Wall St. J., Mar. 19, 2013, at A5, available at http://online.wsj.com/article/SB10001424127887323869604578368410082168122.html.

[15] Horwitz & Sun, supra note 4.

[16] See Perez et al., supra note 14.

[17] See Remarks by the President, supra note 1.

[18] See id.

[19] Id.

[20] Jim Puzzanghera, Obama’s State of the Union: Topic by Topic, L.A. Times, Feb. 12, 2013, http://articles.latimes.com/2013/feb/12/news/la-pn-state-of-the-union-topics-20130212.

[21] See Dean Baker & Will Kimball, The Minimum Wage and Economic Growth, Center for Economic and Policy Research (Feb. 12, 2013), http://www.cepr.net/index.php/blogs/cepr-blog/the-minimum-wage-and-economic-growth.

[22] Horwitz & Sun, supra note 4.

[23] See Memorandum of Understanding Between the Internal Revenue Service and the U.S. Department of Labor (Sept. 19, 2011), available at http://www.wage-hour.net/file.axd?file=2011%2f10%2fDOL+IRS+Memodandum+of+Understanding.pdf.

[24] Proposed Information Collection Request (ICR) for the Worker Classification Survey; Comment Request, 78 Fed. Reg. 2447 (Jan. 11, 2013), available at http://www.gpo.gov/fdsys/pkg/FR-2013-01-11/pdf/2013-00389.pdf.

Mar 06

Labor Law around the World: Lessons from China

China’s meteoric rise as an economic superpower has saturated American news for years. China’s massive exports of inexpensive consumer goods are one of the chief causes of its recent prosperity.[1]  However, many are beginning to realize that some of China’s gains may be ill-gotten, with portrayals of horrific incidents like the Foxconn Technology plant suicides[2] becoming common fare in the American media.

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