The stakes are high in workers’ ‘five-card’ game of chance

Bill Knight column for Mon., Tues. or Wed., Jan. 16, 17 or 18, 2017

Donald Trump has run casinos – into the ground and not – and looking through the lens of gaming, regular working Americans might see that he could stack the deck in the next few years.

In particular, the “five-card” game of chance in labor issues looks to risk five key consequences:

OVERTIME: Already, Judge Amos L. Mazzant III of the Eastern District of Texas issued an injunction preventing the Dec. 1 implementation of President Obama’s Labor Department rule that would raise the minimum pay people must receive before an employer exempts them from time-and-a-half overtime pay for work performed beyond 40 hours in a week. Trump’s nominee to head the Labor Department, Hardee’s owner Andrew Puzder, has criticized the plan, so it’s likely he’ll delay, change or kill it.

JOINT EMPLOYER STATUS. The National Labor Relations Board broadened the definition of what constitutes a “joint employer,” meaning that a corporate parent of franchises such as McDonald’s could be liable for violations of labor law by their franchisees or other subcontractors, forcing them to the bargaining table with employee groups. The NLRB ruled that a company applying “indirect control” or even the possibility of control held in “reserve” could mean it’s a joint employer. Republicans in Congress vocally opposed the move, and it’s likely that Trump would sign any reversal passed on Capitol Hill.

PAY EQUITY. The U.S. Equal Employment Opportunity Commission (EEOC) is supposed to mandate employers to provide records on workers’ pay and hours by gender, race and ethnicity so the federal agency can investigate allegations of discrimination in wages. The data is supposed to be provided starting in March, but that’s after the Inauguration, and it’s possible a decidedly right-wing trump administration could dump the requirement, due to employer complaints about “burdensome” paperwork.

UNION REPRESENTATION VOTES. The NLRB two years ago decided that the time between when a labor union files for an NLRB-supervised election and the actual vote should not be subject to delays – delays that allow employers to engage in intimidation and other union-busting tactics. If Trump appoints anti-union conservatives to the Board, that decision could be dropped or the NLRB’s enforcement budget de-funded.

MANDATORY ARBITRATION. Recent years have seen corporations insert language into consumers and workers agreements requiring arbitration rather than civil proceedings in court. The NLRB has determined that such language violates labor law guaranteeing workers the right to engage in “concerted activities” (whether or not they’re in unions), but different federal courts have issued contradictory rulings. The U.S. Supreme Court has said such mandates are OK under the U.S. Arbitration Act, but the dispute continues. Trump is almost certain to appoint a conservative to replace the vacancy created by the death of Antonin Scalia, swinging the Court farther to the Right, so that may be resolved to the detriment of Americans’ right to a “day in court.”

As in any game of chance, it’s very difficult to accurately forecast the next card played, and Trump is remarkably inconsistent, so he himself is a “wild card.” But as folks know who frequent riverboats or taverns with video poker, the house usually wins.

It’s up to everyday Americans to protect themselves as much as possible against dirty dealing.

Unfortunately, it seems as if the cards are marked.