Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).

 

NFL Settlement Raises Legal Question

What Did the NFL Know?

The National Football League Thursday agreed to pay $765 million over 20 years to settle claims that it hid evidence about the dangers of head trauma suffered by NFL players.

Should that end the matter? Of course not. 

NFL players are employees. 

Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

 Courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.

 The NFL owners had a legal duty to protect the players when they became aware (or should have become aware) of the devastating brain damage being suffered by their players on the field. At that point, the NFL and NFL team owners should have acted to “abate the hazard.”  Professional football is entertainment and there are many feasible ways the NFL could have made the game safer.   

As a result of the settlement, the NFL may be able to avoid the legal discovery process which would have included the deposition of  league officials and doctors about what they knew and when they knew it.  The settlement, however, does not prevent federal authorities from looking into whether  the NFL recognized the risks and still subjected players to serious physical harm. 

To allow the NFL to bury this matter under a rug through a private legal settlement would be akin to the federal government ignoring coal mine owners in West Virginia who failed to properly tunnel or vent a coal mine that caved in and resulted in  catastrophic loss of life. 

 Workplace Fatalities

The U.S. Department of Labor (DOL) reported last week that  4,383 workers died from work-related injuries in 2012 – that’s  3.2 workers  per 100,000 full-time equivalent workers. In a recent press release. DOL Secretary Thomas Perez said: “No worker should lose their life for a paycheck.”

The DOL’s list of  workplace fatality statistics probably didn’t include Kansas City Chiefs linebacker Jovan Belcher who fatally shot his girlfriend last December and then drove to Arrowhead Stadium and committed suicide in front of his coach and general manager. Or Junior Seau, a retired linebacker for the New England Patriots who fatally shot himself in the chest in at his California home last May.

 The deaths of Belcher and Seau were the latest to raise an alarm about head trauma suffered by  players on the football field. A  2012 study by Boston University School of Medicine of 35 former football players (33 had played for the NFL) found that 34 showed signs of brain disease before their deaths.  Dozens of athletes donated their brains to be studied by the medical school, which found a link between head injuries suffered in the heavy-impact sport and degenerative brain disease.