For the rest of December, Washington Examiner reporters will be exploring what 2018 has in store in a number of areas, from the White House and Congress to energy and defense. See all of our year ahead stories here.
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The Supreme Court could be responsible for the most far-reaching change to labor policy in 2018, as the justices will take up a case that could end the practice of forcing government workers to pay union dues.
In September, the justices announced they would hear Janus v. American Federation of State, County & Municipal Employees. Unions such as AFSCME depend on those funds and are likely to face steep membership and dues losses if the practice ends. Public-sector unions now account for roughly half of the labor movement, so a loss could be a blow to union power.
The case involves Mark Janus, an Illinois government worker who objects to being forced to pay a union regular fee, dubbed a "security fee," as a condition of employment. A 1977 Supreme Court precedent called Abood v. Detroit Board of Education said the fees were allowed in contracts between unions and government entities. Janus argues the provision violates his First Amendment rights by forcing him to subsidize political activities he doesn't support. Unions have long argued that they are owed security fees even from non-members to cover the costs of collective bargaining for all the workers at the site.
No date has been set for oral arguments in the case.
The court appeared to be on the verge of narrowly overturning Abood in a similar 2016 case called Friedrichs v. California Teachers Association, but after the death of Justice Antonin Scalia the court deadlocked 4-4, leaving the precedent intact. The replacement of Scalia by Justice Neil Gorsuch is widely believed among court-watchers to give the court's conservative wing the fifth vote needed to overturn Abood.
Public-sector unions fear that would be a disaster for them. An internal survey the union did in 2015 and leaked to Bloomberg News found that only one-third of their members would voluntarily pay dues, and half of its membership couldn't be counted upon to do that.
Meanwhile, the Labor Department is expected to announce new rules covering overtime for workers. Under current federal law, a worker must make at least $47,000 annually before he can be deemed managerial and therefore exempt from the requirement that he be paid time and a half after 40 hours a week. Labor Secretary Alexander Acosta has said the Obama administration overreached in 2016 when it established the current threshold, but he has added that the prior threshold of $23,000 annually was too low, so the administration likely will find a level somewhere in between.
The department also will likely announce new rules covering tipped professions. The Trump administration has indicated that new rules could allow employers to seize tips given to bartenders and wait staff provided they are paid at least the minimum wage, a reversal of a 2011 rule established by the Obama administration that said the tips were the property of the person that received them. The Labor Department is soliciting public comments on the rule, the first step in the process of rewriting it.
The restaurant industry has pushed hard for the change, arguing that income disparities between the "front of the house" workers and the "back of the house" ones such as cooks and dishwashers have made making a living difficult to people for the latter positions, especially in states and cities with high minimum wages. Redistributing the tips to all workers would solve the problem, restaurant owners argue. They dispute arguments that owners would simply seize the tips, arguing no restaurateur could retain any staff if they did that.
The department also is working to rescind an Obama-era rule that forced lawyers to publicly disclose any consulting with management over labor issues. Previously, the disclosure was required only if the attorneys talked to workers. The Obama administration expanded that to include any consulting, a move that was expected to cause many lawyers to stop consulting altogether. A revised rulemaking reinstating the pre-Obama standard is expected in 2018.
President Trump also will have to find a replacement for the chairman of the National Labor Relations Board, the main federal labor law enforcement agency. Philip Miscimarra stepped down as chairman on Dec. 16, leaving the five-member board evenly split between Republican and Democratic members. Under Trump, the board has reversed several key Obama administration-era pro-union rulings, most notably rolling back a "joint employer" rule that made corporations, especially franchisers, potentially liable for workplace violations by other businesses. The eventual pick could face a rough confirmation by Senate Democrats.
Republican lawmakers have proposed numerous bills to roll back the Obama-era changes. The actions of the Labor Department and NLRB are likely to cool those efforts, though leaders may try to hold votes on legislation such as the Employee Rights Act, which would provide workers with additional rights to dissent from unions and requires all union elections have a federally monitored secret vote.
