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WSJ: NLRB’s Joint Employer Attack

Education & the Workforce Committee - 21 hours 30 min ago
The partisan National Labor Relations Board this week continued its radical campaign to transform America's workplaces by issuing a decision that redefines what its means to be an employer. Reps. John Kline (R-MN) and Phil Roe (R-TN) noted that the board's decision "set dangerous precedent" that will "threaten the livelihoods of men and women who achieved the dream of owning a small business and will make it even harder for others to pursue the same opportunity."

Today, the Wall Street Journal explains why labor unions are celebrating a decision that "upends thousands of business relationships": 

Ruining countless August vacations this week, the National Labor Relations Board’s Democratic majority handed down a new joint-employer standard that radically rewrites U.S. labor law and upends thousands of business relationships. The majority asserts that throwing out three decades of legal precedent is necessary “to encourage the practice and procedure of collective bargaining.” Labor unions are celebrating a decision sure to harm diverse industries in every state …
 
A major goal of the new rule is to pit corporate parents against their franchisees in collective bargaining. Last year NLRB General Counsel Richard Griffin directed that McDonald’s be charged as a joint-employer in dozens of unfair labor practice complaints against franchises. Unions say corporations should be on the hook for their franchisees’ workers because computer systems can monitor sales and labor costs.
 
But under the new rule, there’s no limit on the number of parties that could be seated at the bargaining table. For example, West Coast tech companies such as Apple, eBay and Yahoo have contracted with the same private bus service, which the Teamsters have unionized. Would all these companies have to bargain individually with the Teamsters? What if they disagree? Could eBay’s labor agreement override Apple’s bus contract?
 
The majority dismisses the Republicans’ dissent as a “law-school-exam hypothetical of doomsday scenarios.” Perhaps the board had to pass the rule to find out what it does. Nor does the majority consider its economic implications. “It is not the goal of joint-employer law to guarantee the freedom of employers to insulate themselves from their legal responsibility to workers,” the majority writes …

To read more, click here.

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Federal Circuit Reaffirms International Trade Commission’s Authority Over Induced Patent Infringement

WLF Legal Pulse - Mon, 08/24/2015 - 9:00am
Featured Expert Contributor – Intellectual Property (Patents) Jeffri A. Kaminski, Venable LLP The U.S. Court of Appeals for the Federal Circuit sitting en banc has reaffirmed the International Trade Commission’s (ITC) longstanding authority for remedying inducement infringement. The ITC authority was called into question, and in fact overruled, by an earlier panel decision in the […]
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With Recent Use of Disgorgement, FTC Continues to Sharpen its Enforcement Tools

WLF Legal Pulse - Fri, 08/21/2015 - 11:02am
Featured Expert Column – Antitrust/Federal Trade Commission Andrea Agathoklis Murino, Goodwin Proctor LLP One need only check the headlines to see that enforcement of the antitrust laws is alive and well at the Federal Trade Commission (“FTC”) today. On both the merger and conduct front, the FTC’s Bureau of Competition has proven incredibly active—and successful. […]
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Ninth Circuit Panel Eviscerates 2014 ‘En Banc’ Decision That Protects CAFA Removal Rights

WLF Legal Pulse - Thu, 08/20/2015 - 1:31pm
Congress adopted the Class Action Fairness Act (CAFA) in 2005 in response to concerns that plaintiffs’ lawyers were gaming the system to prevent removal of class actions and “mass actions” (lawsuits with more than 100 named plaintiffs) from state court to federal court. CAFA provided state-court defendants the option of removing a case to federal […]
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Rep. Carter: Don’t Leave Working Americans in the Dark on Retirement Savings

Education & the Workforce Committee - Tue, 08/18/2015 - 12:00am

The Department of Labor is pushing a regulatory proposal that will make it harder for working families to save for retirement. In an op-ed featured in The Hill, Education and the Workforce Committee member Rep. Earl L. “Buddy” Carter (R-GA) draws from his experience as a community pharmacist to explain how the proposal will negatively impact small business owners and the hardworking men and women they employ:

Having owned and operated community pharmacies for nearly thirty years, I take pride in having provided my employees with the tools they needed to achieve financial independence. One of the most important tools in this effort were retirement investment plans so they could save to retire comfortably.

Unfortunately the Obama administration is now taking steps threatening the ability for small businesses to provide their employees with this vital resource.  If the administration gets its way, many more employees will not have a retirement plan at work and will have to save on their own  by either paying unreasonable fees or getting their retirement advice online without one-on-one assistance.  Experts estimate Americans stand to lose $80 billion in retirement savings annually due to the rule.

The United States Department of Labor’s new regulation, known as the “fiduciary standard,” would leave many unable to save for retirement at all. It would prohibit any business with fewer than 100 employees from receiving investment information about its retirement plan options.  In doing so, it would render small businesses like the pharmacies I owned unable to help their employees plan and save for retirement.

Middle class families would be hit the hardest by this “fiduciary standard.”  By treating local financial representatives as fiduciaries, the proposed more than 400-page regulation would expand the Department of Labor’s overly-burdensome and complex pension rules to cover Individual Retirement Accounts (IRAs) used by most middle class savers.  The rule change ignores the fact that these accounts are already heavily regulated by existing securities laws.

By far the scariest consequence of the DOL regulation is how it would curtail access to retirement education for middle class savers and potential savers who would benefit most from one-on-one advice.  The regulation limits them to “managed accounts” where financial services firms charge a fee, usually around one percent, based on an account’s assets under management. Buy and hold or long-term savers would pay significantly more over the long run if charged an annual asset-based fee.

Moreover, the minimum balance required for managed accounts at most firms is at least $25,000 if not much, much more.  That would cut off as many as 20 million Americans whose accounts do not reach that threshold from receiving face-to-face retirement advice.

This misguided change would severely restrict access to information and education about retirement options for those already struggling to save.  Those with less than $25,000 to save and invest, would likely be forced to pay an hourly fee of $250-$500 for retirement advice, search blindly for advice on the Internet, or forgo saving at all.

Anyone who thinks the average middle class saver – who has less than $250 per month to save for retirement – is going to shell out $250 an hour or more for someone to give them retirement advice is out of their minds.  And if you think getting sound retirement advice online is easy, just Google it and see the many ads that overtake your screen.
 
This is a classic case of federal government stepping in the way of a Main Street success story with a “Washington bureaucrats know best” mentality.  Having had the privilege of helping my employees at the pharmacies save for their retirement, I know what cutting off this resource could mean for them and their families.

Like many small business owners, I consider my employees part of my family.  That’s why I am so committed to working with Chairman John Kline (R-Minn.) and the House Education and the Workforce Committee to block this rule change so they – and millions of working Americans like them – aren’t left in the dark when it comes to retirement savings.

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D.C. Circuit Weighs in, Once Again, on Privileged Corporate Documents in “KBR” Case

WLF Legal Pulse - Fri, 08/14/2015 - 9:23am
Guest Commentary by Greg Brower and Brett W. Johnson, Snell & Wilmer LLP* Government contractors won another round in a long-running battle over the discoverability of internal investigation documents. On August 11, the United States Court of Appeals for the D.C. Circuit found, for a second time in the same case, that the district court […]
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We’ve Come a Long Way…But There’s More Work to Do

NAWBO National - Tue, 08/11/2015 - 2:08pm

August 26th is Women’s Equality Day this year. The date was selected to mark the passage of the amendment to the Constitution giving women the right to vote in 1920. We have made great strides since then—women today have every opportunity to be independent. We can establish bank accounts, be granted personal and business loans, have children while remaining in the workforce, serve on juries, pursue higher education, become elected public officials and more. While this is an impressive list, a gender gap still exists, whether it’s equal pay or women in corporate leadership.

This may surprise you. Around the world, women and girls face barriers and disadvantages in every sector in which we work, according to the U.S. Agency for International Development. In fact, while women make up more than 40 percent of the agriculture labor force, only 3 to 20 percent are landholders. In Africa, women-owned enterprises make up as little as 10 percent of all businesses. In South Asia, that number is only 3 percent. And despite representing half the global population, women comprise less than 20 percent of the world’s legislators. Putting women and girls on equal footing with men and boys has the power to transform every sector in which we work. Now that is motivating and encouraging!

NAWBO knows this power of transformation well. This organization was founded 40 years ago by a group of women in the Washington D.C. area who did not have anyone to advocate for them. They weren’t permitted to join any of the business groups of their time. They found that many of their colleagues across the country could not access the capital or information they needed to start a business. In many places, women could not even get a business loan without a male to co-sign. These women set out to change that for themselves and for future generations of women entrepreneurs! They fought against the norm and launched a campaign for change that was not widely accepted or popular at the time. Due to their triumph and victories, today, we can enjoy more equality and a means of opportunity as women business owners.

The theme of this month’s NAWBO ONE is equality. In it, you’ll read a Q&A with Kevin Maggiacomo, president and CEO of Sperry Van Ness and co-founder of www.5050×2020.org, who is passionate about gender equality and helping more women break the glass ceiling and enter more leadership roles. Kevin is speaking at NAWBO’s Presidents Breakfast at the National Women’s Business Conference hosted by NAWBO this September. You’ll also read about the Turning Point Suffragist Memorial Association’s partnership with NOVA Parks to build a memorial in Virginia honoring women suffragists who fought and won women’s right to vote, as well as a roundtable discussion with several NAWBO community members discussing wage gap solutions.

Additionally, I am proud to highlight NAWBO’s new partnership with Vision 2020, a coalition of individuals and organizations united in the commitment to achieve economic, political and social equality for women and girls by the year 2020, the 100th anniversary of the 19th Amendment to the U.S. Constitution that granted women the right to vote. You can click here to learn more. If you are interested in becoming a Vision 2020 delegate or receiving more information, reach out to NAWBO’s Director of Advocacy and Public Policy Joy Lutes at jlutes@nawbo.org.

As Women’s Equality Day comes this year, I hope you’ll think about the gaps you would like to see closed or opportunities you would like to see opened for women and use your resources to help make them a reality.

—Crystal Arredondo, NAWBO National Chair

 

PS: One of the valued members of our NAWBO National team has moved on to new opportunities. I want to thank Rachael Bender for her passion and excellence in helping to build and grow NAWBO. Read the profile on Rachael here that appeared in a recent issue of NAWBO ONE and join me in wishing Rachael the very best in her next venture!


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Health Canada Gets it Right, While FDA Goes Further Astray, on “Added Sugars” Labeling

WLF Legal Pulse - Tue, 08/11/2015 - 11:23am
In a comment critical of his former employer’s proposal to mandate “added sugars” labeling, a former Director of the Food and Drug Administration’s Office of Food Labeling  wrote, “‘Added Sugar’ is the ‘bête noir‘ of this decade for many in the nutrition community.” That community’s obsession with added sugars has hit an all-time high (or […]
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Fifth Circuit Requires Labor Department to Pay Attorneys’ Fees in Bad Faith Independent Contractor Suit

WLF Legal Pulse - Tue, 08/11/2015 - 9:00am
Guest Commentary By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall. In recent years, federal and state workplace regulators have put intense pressure on employers to move away from the use of independent contractors. This pressure was […]
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Court Cuts Class-Action Firm’s Fees to $0 after Unveiling Concealed Settlement Scheme

WLF Legal Pulse - Mon, 08/10/2015 - 9:00am
Guest Commentary by Chelsie Kidd, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. A California Superior Court judge recently turned a class-action law firm’s worst nightmare into reality when she denied the firm over $5 million in attorneys’ fees. In Lofton v. Wells Fargo […]
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Federal Judge, Referencing FDA Order on Trans Fat, Permits State-Law Class Action to Proceed

WLF Legal Pulse - Thu, 08/06/2015 - 5:14pm
The Food Court strikes again. On July 15, U.S. District Court for the Northern District of California Judge William Alsup rejected Nissin Foods Company’s motion to dismiss a claim alleging that Nissin’s use of trans fat in its instant noodles was an unfair trade practice under California law. The decision comes just a month after […]
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WCOE Charter Member and Past President Ida Brooker Retires after 30 Years of Service to the Boeing Company

WCOE News - Tue, 08/04/2015 - 9:03am

“If you love what you do, you’ll never work a day in your life. If you don’t love your job and you aren’t having fun doing it, then it’s time to find something new.” This philosophy is one that Ida Brooker has followed throughout her career – and it has certainly served her well.

Ida began her professional career in Tulsa, Oklahoma as a probation and parole officer, far away from the construction arena. She quickly learned that criminal corrections was not the field for her. Eager for a change, Ida applied for a bookkeeping job at a general contracting firm owned and operated by a friend’s father. So started Ida’s career in the construction industry. Shortly after joining the company, Ida became the company’s estimator. Soon Ida was running the company’s entire office operation, including estimating, bidding jobs, hiring subcontractors, and managing staff.

Several years later, Ida decided to move back to her hometown of Seattle, Washington. It was the 1970s, and women were certainly not being welcomed with open arms into jobs in the construction industry. Ida struggled to find a suitable position in her chosen field. She contacted an employment agency, who wanted to send Ida to an interview for a secretarial position. Although she did not want to work as a secretary, Ida went to the job interview because the employer was a construction supplier that sold lockers, partitions, cabinets, countertops, and other specialty construction supplies. Ida told the man who conducted the interview that she did not want to work as a secretary, but instead wanted a position as a project coordinator. Within hours, she was offered the job.

After working as a project coordinator for several years, Ida then went to work for a concrete sawing and drilling company as an estimator and dispatcher. The company was given the opportunity to work as a subcontractor on a project with BoeCon (Boeing Construction), which was a construction company owned by the Boeing Company. At her boss’s request, Ida reviewed the subcontract BoeCon wanted them to sign. Ida advised her boss not to sign the subcontract as written, and gave him a detailed list of changes he should request when he met with BoeCon. Ida’s boss later reported to Ida that the BoeCon representatives were very impressed with Ida’s list of requested contract revisions and asked who had performed the contract review. A few weeks later, BoeCon called Ida and offered her a job as an estimator.

Ida’s first project for BoeCon was on a nuclear power plant in Washington. She worked on several other major projects as well, but then Boeing decided to close BoeCon.

Next, Ida went to work for a general contractor in Palo Alto, California, where she managed a group of staff responsible for hiring subcontractors. During an interview in 1984 with a prospective staff member, Ida first learned about WCOE. The woman Ida was interviewing said that Ida needed to meet Dorothy Erickson, who at that time was the President of Nationwide Construction in San Francisco. Dorothy and a group of other female owners and executives in the construction industry were founding a brand new organization – Women Construction Owners & Executives – dedicated to making a positive difference for women in the construction industry so there would come a time when gender would cease to be a business issue. Ida soon became a charter member of WCOE.

Shortly thereafter, Ida’s former boss at BoeCon called. He was now working for the Boeing Company, and he offered Ida a job back in Seattle, Washington. When Ida reminded her former boss that she did not build airplanes, he told her that the Boeing Company needed Ida’s expertise to build buildings. Ida began working in the contracts group at Boeing, where she became responsible for hiring contractors to build some of Boeing’s largest and most complex facilities all around the United States and throughout the world, including in China, Russia, and Saudi Arabia.

Ida’s international expertise at Boeing became very valuable to WCOE when the U.S. State Department asked that WCOE appoint a representative to serve on a new Advisory Board the State Department was forming. Ida was selected to serve on the Board for a one year term. The State Department ultimately extended Ida’s term on the Advisory Board for three additional years due to the valuable input she provided.

Ida retired earlier this year after thirty years with the contracts group at Boeing. Ida says she really never expected to stay with Boeing for thirty years, but she always found the work interesting and fun. Each day brought new challenges. Ida became the go-to person at Boeing for her expertise in construction contracting. She was a subject matter expert in her field, well-respected and indispensable. Ida loved her job at Boeing – so it never felt like work.

Despite retiring from Boeing, Ida remains active in WCOE. She is currently President of the WCOE Resource Center, a 501(c)3 educational foundation with the purpose of providing education to WCOE members and the public at large relating to best practices in the construction industry. Ida also sits on the National Board of Directors of WCOE.

As a woman who broke so many gender barriers working in the construction industry, Ida Brooker has always been a force to be reckoned with. Still, Ida has also always valued the importance of enjoyment and job satisfaction. When asked for career advice, Ida says, “Learn all you can and follow your interests. Humor is what makes the world go around. Never take yourself too seriously, and always find the fun in your work.”

Congratulations to Ida for a career well spent! We all look forward to seeing what comes next!

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A Case with Teeth?: Federal Circuit to Review International Trade Commission’s Jurisdiction over Digital “Articles”

WLF Legal Pulse - Mon, 08/03/2015 - 12:45pm
Next Tuesday, August 11, the U.S. Court of Appeals for the Federal Circuit will hear oral argument in ClearCorrect Operating, LLC v. International Trade Commission, a case that nominally involves a cease-and-desist order the International Trade Commission (ITC) imposed on a data file that contained a digital model of crooked teeth. As numerous amici in […]
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The Supreme Court’s NOT Top 10: Cases the Justices Wrongly Rejected Last Term

WLF Legal Pulse - Fri, 07/31/2015 - 3:59pm
The usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for […]
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Ninth Circuit Decision Allowing Appeal of Right from Order Denying Class Certification Is Ripe for Supreme Court Review

WLF Legal Pulse - Thu, 07/30/2015 - 5:00pm
Rule 23(f) of the Federal Rules of Civil Procedure gives appeals courts unfettered discretion in deciding whether to permit an interlocutory appeal from a class certification decision. Most circuits have exercised that discretion sparingly. But a U.S. Court of Appeals for the Ninth Circuit decision issued last week affirmed that circuit’s unique rule: plaintiffs (but […]
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Kline Statement: Hearing on "Reviewing the Policies and Priorities of the U.S. Department of Health and Human Services"

Education & the Workforce Committee - Tue, 07/28/2015 - 12:00am
As is often the case when an agency secretary appears before the committee, we have a lot of ground to cover in a short period of time. That is especially true for an agency as big, powerful, and costly as the Department of Health and Human Services.

 

By the end of the current fiscal year, HHS is expected to spend approximately $1 trillion administering numerous programs affecting millions of Americans, including child care, welfare, health care, and early childhood development. At a time when families are being squeezed by a weak economy and record debt, we have an urgent responsibility to make sure the federal government is operating efficiently and effectively. It is a responsibility we take seriously, which is why this hearing is important and why we intend to raise a number of key issues.

For example, we are interested to learn about the department’s progress implementing recent changes to the Child Care and Development Block Grant program. Last year, the committee helped champion bipartisan reforms of the program to strengthen health and safety protections, empower parents, and improve the quality of care. This vital program has helped countless moms and dads provide for their families, and we hope the department is on track to implement these changes quickly and in line with congressional intent.

Another vital program for many low-income families is Head Start. Earlier this year, the committee outlined a number of key principles for strengthening the program, such as reducing regulatory burdens, as well as encouraging local innovation and better engagement with parents. The committee then solicited public feedback that would help turn these principles into a legislative proposal. 

It was in the midst of this effort to reform the law that the department decided to launch a regulatory restructuring of the program. Some of the department’s proposed changes will help improve the program; however, the sheer scope and cost of the rulemaking raises concerns and has led to some uncertainty among providers who serve these vulnerable children. Strengthening the law is a better approach than transforming a program through regulatory fiat, and we urge the administration to join us in that effort.

These two areas alone could fill up most of our time this morning, and I haven’t even mentioned services provided under the 1996 welfare reform law and the Older Americans Act. Of course, as you might expect, Secretary Burwell, on the minds of most members are the challenges the country continues to face because of the president’s health care law. Families, workers, and employers are learning more and more about the harmful consequences of this flawed law. For example:

  • Patients have access to fewer doctors. To control costs, it is estimated that insurance plans on the health care exchanges have 34 percent fewer providers than non-exchange plans, including 32 percent fewer primary care doctors and 42 percent fewer oncologists and cardiologists.

  • The law is plagued by waste and abuse. In 2014, investigators with the nonpartisan Government Accountability Office used fake identities to enroll 12 individuals into subsidized coverage on a health care exchange. Just this month, GAO announced 11 of the 12 fake individuals are still enrolled and receiving taxpayer subsidies.

  • More than seven million individuals paid a penalty for failing to purchase government-approved health insurance, roughly 25 percent more than the administration expected under the worst case scenario.

  • According to the Associated Press, at least 4.7 million individuals were notified that their insurance plans were cancelled because they did not abide by the rigid mandates established under the health care law.

  • The nonpartisan Congressional Budget Office estimates the law will result in 2.5 million fewer full-time jobs. This reflects what we’ve heard over and over again from employers who have no choice but to cut hours or delay hiring because of the law’s burdensome mandates.

  • Health care costs continue to skyrocket. According to the New York Times, health insurance companies are seeking rate increases of “20 percent to 40 percent or more,” suggesting markets are still adjusting to the “shock waves set off by the Affordable Care Act.”

Finally, after all the mandates, fraud, loss of coverage, fewer jobs, higher costs, and nearly $2 trillion in new government spending, it’s estimated more than 25 million individuals will still lack basic health care coverage. And yet, just last month, President Obama said the law “worked out better than some of us anticipated.” Of course, for those who opposed this government takeover of health care, this is precisely what we anticipated and it is precisely why the American people deserve a better approach.

 

Applying High Court Jurisdiction Rulings, Federal Judge Shuts Out Suit Against Foreign Soccer Federation

WLF Legal Pulse - Mon, 07/27/2015 - 12:37pm
Guest Commentary By Ashley Snell, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. After finding some success in its concussion-related class actions against professional and amateur football associations, noted plaintiffs’ firm Hagens Berman has taken aim at the world’s most popular sport—soccer. The firm […]
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Ninth Circuit Adds to Landowners’ Woes with Another Endangered Species Act Litigation Loss

WLF Legal Pulse - Mon, 07/27/2015 - 12:08pm
Guest Commentary By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall. The U.S. Court of Appeals for the Ninth Circuit recently decided that the National Marine Fisheries Service (NMFS) need not perform a thorough balancing of the […]
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