Worker Centers Seen As Likely Targets For Trump Regulators
January 23, 2018
Law360, New York (January 23, 2018, 9:30 PM EST) — Business advocates who have been pressing the federal government for years to increase its regulation of worker centers like Fight for $15 are more hopeful than ever that they’ll get their way after a string of reversals of Obama-era National Labor Relations Board precedent.
As worker centers — a loosely defined category of advocacy groups that help workers in a specific community or industry — have gained momentum and secured changes to state employment laws, the business community has stepped up calls for those groups to be regulated.
“From the business perspective, [we’ve] just been treading water for the last 10 years,” said Heather Greenaway, executive director of the Workforce Fairness Institute, one of the most vocal proponents of regulating worker centers. “At this point, the NLRB is back to kind of defining rules that are not so union-driven. … It’s time to take another look at worker centers.”
WFI and others want the government to broaden its interpretation of the term “labor organizations” under the Labor Management Reporting and Disclosure Act and the National Labor Relations Act. While past efforts to persuade the NLRB and U.S. Department of Labor to find that worker centers are labor organizations failed to bear fruit, business groups hope — and worker advocates worry — that the current administration will be more receptive.
The Labor Management Reporting and Disclosure Act, which the DOL administers, requires that labor organizations disclose detailed financial information, draft a constitution and select their leaders in democratic elections. The National Labor Relations Act limits what protest activities labor organizations can engage in.
Labor Secretary Alex Acosta stoked speculation that he would re-examine the DOL’s interpretation of the LMRDA at a November congressional hearing. In response to a question from Rep. Francis Rooney, R-Fla., Acosta said the DOL was “looking at it” and would follow up with his office “in a few weeks.”
Acosta hasn’t made any further public comments on the issue in the months since, although the looming possibility of new regulations has been an unwelcome distraction for worker centers.
“There’s been a continuity to this issue across different administrations,” said Harvard Law School Labor and Worklife Program Executive Director Sharon Block, who was a DOL policy official in the Obama administration. “[Acosta] injected this uncertainty into what I think had no uncertainty.”
Groups like WFI hold up Fight for $15 as the poster child of the purported blurring lines between worker centers and unions. The group, which gets a chunk of its funding from the Service Employees International Union, agitates for wage increases by organizing walkouts, pickets and marches — activities that business advocates say are as intrinsic to labor organizations as collective bargaining.
That some of these groups have grown in influence in recent years has led the business community to step up its calls for greater oversight. Fight for $15 has taken credit for winning wage increases in dozens of states and municipalities, and other groups like the Restaurant Opportunities Centers United helped topple failed labor secretary nominee and former fast food CEO Andrew Puzder last February.
Worker center opponents have also criticized a 2017 New York City law that lets fast food industry workers give a designated worker center a portion of their wages.
Business advocates say applying the federal labor law’s disclosure requirements to worker centers could show unions are pulling the strings.
“This kind of transparency would be useful for the attacked employer — to be able to say, ‘Look, this is nothing more than a union,'” said Littler Mendelson PC Workplace Policy Institute Co-chair Michael Lotito.
However, whether a group is a labor organization under either statute hinges on the extent to which a group “deals with” employers on matters including grievances, labor disputes and hours. Many worker centers would still not be labor organizations under an expanded interpretation, business groups say.
“There’s hundreds of worker centers out there. Most of them are legitimate, small enterprises that are providing some actual service,” said U.S. Chamber of Commerce Workforce Freedom Initiative Vice President Glenn Spencer. “Where these groups cross the line and attempt to engage in the types of behaviors traditional unions would … then the coverage of the statute ought to kick in.”
But according to worker advocates, reclassifying any worker center as a union organization ignores key differences between worker centers and unions.
“Unions … negotiate directly and on behalf of a collective group of workers, and that’s something that’s very specific to unions,” said Ian Pajer-Rogers, communications director at Interfaith Worker Justice, a national coalition of workers’ advocates that includes dozens of worker centers.
Pajer-Rogers added that the unions’ contributions to worker centers do not make them one and the same.
“There’s plenty of public documentation, even on our own website, about union money that we receive,” he said. “Just because a union supports a project or an organization that is furthering the rights of workers — that doesn’t mean that group is necessarily collective bargaining.”
Expanding the agencies’ interpretation of the statutes to rope in worker centers would be a blow, but not a fatal one, employee advocates say. Having to report finances, hold elections and ensure their bylaws meet the DOL’s requirements could distract from the groups’ advocacy, but wouldn’t end it.
“In no way would it be a death knell,” said Charlotte Noss, a former worker center attorney now with the National Employment Law Project. “[Worker centers] would have to shift around a little bit of funding, but at the end of the day, it’s not going to prevent worker centers from doing what they do.”
–Editing by Katherine Rautenberg and Jill Coffey.