Sharon Block

Public employee unions were dealt an entirely expected but nonetheless massive blow Wednesday when the Supreme Court ruled 5-4 in Janus v. AFSCME that they may no longer collect mandatory “fair share” or “agency” fees from non-members to cover their portion of the cost of collective bargaining...Back in 2012, the conservative justice questioned the legality of fair-share fees, writing in Knox v. Service Employees that "acceptance of the free-rider argument as a justification for compelling non-members to pay a portion of union dues represents something of an anomaly" and that enrolling workers automatically in unions unless they opted out “represents a remarkable boon to unions.” Alito quoted repeatedly from Knox in yesterday’s case. “Janus isn’t the first time that Alito has opined on the viability of Abood," said Sharon Block, a former Obama DOL official now working at Harvard University.

An op-ed by Benjamin Sachs and Sharon Block. With its 5-4 decision in Janus v. AFSCME, the Supreme Court has just imposed a right-to-work regime on public workers everywhere in the country — a profound blow to the union movement. As a result of the decision, public sector unions are now legally obligated to provide representation to workers and yet legally prohibited from requiring anyone to pay for that representation. Before Janus, public sector employees who didn’t want to be union members still had to pay their share of what it cost the union to represent them. This “fair share fee” was calculated to include the worker’s share of the union’s collective bargaining expenses and also the costs the union incurred providing individual representation to the worker in grievance and arbitration proceedings. The fee could not include any costs of the union’s political program.

Language in a confidential severance agreement Tesla Inc. is using as part of the biggest job cut in its history is likely to deter dismissed employees from going public with worker safety concerns, according to employment-law experts....“The implication is, if you went to OSHA and you said, ‘Here’s something new I want to tell you about a safety concern at Tesla,’ and then OSHA asks the company to respond to that allegation, the company is going to say, ‘That employee told us that they raised everything,’” said Sharon Block, the executive director of Harvard University’s Labor and Worklife Program.

An op-ed by Terri Gerstein and Sharon Block. The Supreme Court has just told the nation’s workers: If you’re underpaid at work, or if you face discrimination on the job, you’re on your own. Federal labor law protects the right of workers to join together to improve their conditions, whether through a union or other means. But the court has now carved out a big exception to that longstanding principle. In a 5-4 decision on Monday, the court said that companies can use arbitration clauses in employment contracts to bar workers from joining forces in legal actions over problems in the workplace. In other words, workers who are underpaid, harassed or discriminated against will have to press their cases alone in arbitration, rather than with their colleagues in a class-action case, or even with their own lawsuit.

The National Labor Relations Board’s surprise decision to tackle joint employer liability via regulation is raising questions about whether the board’s Republican majority already knows how it will resolve one of the biggest labor policy debates in recent years. But that’s not likely to stop the board from using the rulemaking process to limit legal responsibility for businesses in franchise, staffing, and other contractual arrangements...Supporters of the Obama board’s approach to joint employment say the indirect control standard gives workers a seat at the table, with everyone involved in setting the terms and conditions of their jobs. They’re concerned that the board Republicans will simply turn the scrapped Hy-Brand opinion into a regulation. “We know where they want to get to now because of the decision in Hy-Brand,” former NLRB Member Sharon Block (D) told Bloomberg Law. “They appear to be using the rulemaking process to do an end run around conflict-of-interest problems.”

A century-plus of combined legal expertise is leaving the Labor Department, setting up four key vacancies in an office with unheralded influence on the administration’s workplace agenda. The DOL’s associate solicitors for employment and training (Jeffrey Nesvet), occupational safety and health (Ann Rosenthal), and administrative law and ethics (Robert Shapiro), along with the New England regional solicitor (Michael Felsen), are either about to retire or recently did so—all after lengthy careers in the senior civil service...The quartet of retiring lawyers oversaw one of the largest legal departments in the federal government, with some 600 DOL attorneys crafting rules and guidance in Washington or enforcing and litigating more than 180 laws across the country. “Those are four people who have been involved in every important decision in their areas for decades. It’s a tremendous loss,” Sharon Block, who was a senior counselor to Obama’s Labor Secretary Thomas Perez, told Bloomberg Law.

Organized labor managed an increasingly rare feat on Monday — a political victory — when its allies turned back a Senate measure aimed at rolling back labor rights on tribal lands. The legislation, called the Tribal Labor Sovereignty Act, would have exempted enterprises owned and operated by Native American tribes from federal labor standards, even for employees who were not tribal citizens...More than half a million people are employed by casinos and affiliated resorts on tribal trust land, and a vast majority are not citizens of tribes. Thousands employed in other tribal enterprises could have been affected as well. “It’s a very, very troubling step at a moment when we should be doing everything we can to try to protect people’s collective rights and when there are so many people who feel so disempowered in this economy,” said Sharon Block, a former member of the National Labor Relations Board who is executive director of the Labor and Worklife Program at Harvard Law School.

An op-ed by Alison Omens and Sharon Block. The United States has fallen behind on equal pay. According to JUST Capital’s 2017 Rankings, 78 of the 875 largest publicly-traded U.S. companies have conducted pay equity analyses, while only 54 have established a policy, as well as targets, for diversity and equal opportunity – that’s 9% and 6% of these corporations, respectively. When it comes to pay equity, corporations in the U.S. are not beholden to the same rules as those in other nations, and are lagging when it comes to equal pay for women.

...When news of the proposed settlement in the McDonald’s joint employment case broke last week, some folks might have assumed we accidentally dropped a zero from the $170,000 that Mickey D’s is offering a group of workers to resolve their unfair labor practice complaints. Surely, the chance to resolve one of the biggest cases in the labor and employment space without risking a ruling that McDonald’s is a joint employer with its franchisees of franchise restaurant workers could fetch a bigger price tag? “It sounds like they’re getting off awfully cheap,” former NLRB member Sharon Block (D) told me of the settlement. In fact, McDonald’s may wind up resolving the case without paying anything to the 19 or so workers who said they were retaliated against for participating in Fight for $15 demonstrations.

The Minor League Baseball season kicked off on April 5 with more than 50 games across the country. Many players — in addition to facing the opposing teams — face the challenge of living on a low fixed salary that doesn’t include pay for spring training or offseason work. Their contract also doesn’t provide for extra pay when they work more than 40 hours per week, as they often do during the season — with a packed schedule of personal training, team practice, game play and travel...Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and an Obama administration appointee to the National Labor Relations Board, said that because many minor league players are paid such a low salary — in some cases working out to less than minimum wage for all the hours worked — their lawsuit should proceed. “We are talking about paying people $7.25 per hour, and time-and-a half when they work over forty hours. These are just bedrock principles of minimum standards,” Block said. And she said that not paying players during spring training flies in the face of other labor law precedent.

The National Labor Relations Board’s general counsel is standing firm on a series of proposals to restructure the agency starting next year even as concern within the NLRB about the plans is said to have reached a boiling point...Stakeholders on the left continue to believe the general counsel’s reliance on the budget and expected appropriations as a central justification—as in his latest letter—is disingenuous. “The president’s budget came out after Congress had reached agreements on spending caps that are completely at odds with it,” Sharon Block, another Democrat former board member, told Bloomberg Law. Block, who is now at Harvard Law School, said the expectation that Congress will adhere to the White House budget next year “is not a serious idea.”

An op-ed by Sharon Block. Baseball has long been identified as America’s national pastime — the quintessential American game. It has often reflected our culture and society, from Jackie Robinson breaking the color barrier during the civil rights movement to rising immigrant participation in the game as our population becomes more diverse. Sadly, as the new baseball season starts, the sport now reflects a very negative trend — the growing inequality and outsize influence of powerful, moneyed corporate interests in our political system. In a provision buried on page 1,967 of the new law to fund the government that passed last week with bipartisan support, Congress rolled back the most basic workplace protections for Minor League Baseball players.

...Trump’s efforts could soon reach your neighborhood restaurant, barbershop, and nail salon. One of the administration’s major deregulation efforts is currently underway at the Department of Labor — and if implemented, it could potentially hurt millions of American workers who get tips as part of their jobs. The agency is considering a new rule that would give employers unprecedented control over what to do with a worker’s gratuities...“It’s really, really troubling,” said Sharon Block, a law professor at Harvard who worked at the Department of Labor under the Obama administration and who helped develop the Obama-era rule clarifying that tips were the property of the workers who earned them. “This is no small thing for people who really can’t afford to be subsidizing their employers.”

Further revealing how far the Trump administration is willing to go to "actively make workers' lives worse," Bloomberg Law reported on Wednesday that White House budget chief Mick Mulvaney personally approved the Labor Department's decision to delete an internal analysis showing that its proposed "tip-sharing rule" would allow companies to steal hundreds of millions of dollars from their employees per year...Mulvaney ultimately sided with Acosta, and the Labor Department scrubbed its internal analysis from the final proposal. "The story about how Secretary Acosta pushed out the tip stealing rule while hiding the cost from the public keeps getting uglier," Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, wrote in response to Bloomberg Law's reporting. "Having to go so far up the chain to get the okay to flout the rules shows that Acosta knew that they were trying to get away with something."

The National Labor Relations Board is taking a redo on its controversial decision to limit joint employer liability for affiliated businesses, thanks to ethics questions surrounding Member William Emanuel’s (R) participation in the case. The board announced today that it has vacated its decision in Hy-Brand Industrial Contractors...“This was one of the most important issues that this board was going to deal with and everyone knew that his firm was involved,” former NLRB member Sharon Block told Bloomberg Law of Emanuel’s participation in the case. The board “broke precedent in dealing with an issue of this magnitude” by taking up the joint employment question in a case in which it could have been avoided, Block added.

An internal report released this week said a National Labor Relations Board member’s vote in a case tied to his former law firm reveals a “serious and flagrant” ethics problem at the agency and calls into question the validity of a prominent business-friendly decision the Republican majority pushed through last year...Sharon Block, former NLRB member and now executive director of Harvard Law School’s Labor and Worklife Program, said the inspector general report makes it clear that the Hy-Brand decision must be invalidated. Block said the board could ask for input from the parties in the case to show why it should or should not validate the decision...“This issue undermines the credibility of the board, which is already subject to a lot of political attack,” Block said. “It’s really unfortunate that they have done something that at least feeds that perception.”

...The Trump administration is seeking to change wage regulations so that restaurants and other businesses with tipped workers can decide how the gratuities are divvied up...Sharon Block, a former Labor Department official under Obama, said it’s hard to read the proposal any other way. In adopting a judge’s dissent in a tip-sharing lawsuit, Trump’s team seems to argue that the Labor Department can’t tell an employer what to do ― or not do ― with a worker’s tips if the employer pays the federal minimum wage of $7.25. As the judge put it, so long as the workers receive the legal minimum, employers can run tip pools “however they see fit.” “I’m not sure how, based on their adoption of [the dissent], they could draw a legal distinction between what our regulation did and a rule that says the employer can’t keep the tips,” explained Block.

In a jarring reversal of fortunes, a pending National Labor Relations Board case that was supposed to be a weapon for unionizing hundreds of thousands of low-wage fast-food workers under Obama may now morph into an anti-labor bludgeon for big business under Trump...According to Sharon Block, a former NLRB member under Obama and now director of Harvard’s Labor and Worklife Program, a full and fair trial would, if nothing else, expose the sham of Trump’s “populist” image, and help dispel any myths surrounding the White House’s sympathies with working-class voters. “If the facts are as strong as they seem to be but the board still fails to find joint employer status, it will be clear to the public what really happened—the Trump administration putting a finger on the scales for corporate America and not working Americans.”

An op-ed by Sharon Block and Benjamin Sachs. For the past three years, the federal government has painstakingly built a case against the world’s second-largest private employer, McDonald’s, charging the company with illegally harassing and terminating employees who have gone on strike with the “Fight for $15″ campaign. There have been over 150 days of trial and hundreds of exhibits entered into the record. And though McDonald’s has aggressively fought to slow down the trial, attorneys at the National Labor Relations Board have continued to press the case. Until, that is, the Trump administration’s political appointees showed up for work.

Experts say a new labor accord granting German metals and electrical workers the right to a 28-hour week reflects a generational shift in how people balance their professional and outside lives...But but but ... don't look for such concessions to reach the U.S. any time soon, suggests Sharon Block, who runs the Labor and Worklife Program at Harvard Law School. "It shows a growing divide between what is going on here and the rest of the industrialized world," she told Axios.

...Are workers employees or independent contractors? Some of the first major labor cases before the Supreme Court focused on that issue—such as whether newspaper delivery people were considered contractors or employees. Sharon Block, a former NLRB member and now executive director of Harvard Law School’s Labor and Worklife Program, had this to say: “I think there is a tendency to get distracted by the bright, shiny object of technology. To assume that because technology is involved doesn’t mean that standards don’t apply. The standards of the relationship isn’t changed.”