The Future of Work: Takeaways from a Webinar with Experts on What’s Ahead in 2018

Bloomberg Law managing editor Chris Opfer recently sat down with a panel of labor and employment experts to talk about Hot Topics and the Future of Work. They discussed a wide range of issues, including the latest on the joint employment debate, worker classification in the gig economy, and the Labor Department’s update to its overtime rule. In this Q & A, Natalie Edie, Bloomberg Law’s Market Intelligence Director, talks to Chris about some key takeaways.

Edie: You talked with experts from business, worker advocate, and union backgrounds who have served as government officials in Republican and Democrat administrations. Was there anything they agreed on?

Opfer: Yes. There’s a lot of uncertainty these days for workers and their employers. President Trump’s administration is still trying to put its stamp on labor policy. Just how the Labor Department and other agencies peel back the Obama agenda largely remains to be seen. Meanwhile, recent judicial decisions and cases pending before the Supreme Court leave unanswered questions about the legality of class action waivers, among other topics.

At the same time, no one is expecting Congress to get much done on the labor and employment front in the near future. Although the Republican-majority House has passed at least a handful of bills, those measures aren’t likely to see much action in the Senate. That’s because the 60-vote requirement to pass legislation in that chamber means at least nine Democrats have to cross the aisle for bills to move. All four panelists said they don’t expect the Senate to pass a bill that would standardize the joint employer liability test under federal labor and wage and hour laws, for instance.

Edie: What’s the latest on the Labor Department’s overtime rule?

Opfer: What we know for sure is that the Obama administration’s overtime rule isn’t going to happen. That rule would have made some 4 million workers newly eligible for time-and-a-half pay for all hours worked beyond 40 each week. A federal judge in Texas put the rule on hold shortly before Obama left the White House.

The Labor Department has indicated that it plans to propose a new rule sometime this year. The proposal is expected to increase the salary threshold for automatic eligibility from the $24,000 level established by the George W. Bush administration but not to the $47,000 mark the Obama DOL floated.

Alex Passantino and Paul DeCamp, both of whom ran the DOL Wage and Hour Administration under Bush, said there are also questions about whether to keep a provision from the Obama rule to automatically increase the salary threshold every few years. Some business advocates have additionally argued that the salary threshold should vary by region, based on cost of living.

Edie: Worker classification is an interesting issue that’s been in the spotlight recently, thanks to the rise of gig companies like Uber and Lyft. Has the employee vs. independent contractor question been resolved?

Opfer: This issue is complicated partly because federal, state, and local laws use different tests to determine whether a worker is an employee or an independent contractor. It’s important because contractors generally are not protected by minimum wage and overtime laws, are not covered by workers’ compensation and unemployment insurance plans, and don’t have the right to unionize.

A judge in Seattle may eventually shed some light on the unionization piece of the equation. Lawyers are currently arguing over a city ordinance that would allow rideshare drivers for Uber and Lyft to organize, despite their status as independent contractors. Sharon Block, who was an NLRB member and Labor Department official in the Obama administration, explained that the case also raises antitrust issues about whether contractors can collude together in the form of collective bargaining.

“In the end if they’re successful it could be a very important model,” Block said of the Seattle ordinance.

Edie: Former NLRB General Counsel Richard Griffin joined the panel fresh off of arguing a high-profile labor case before the Supreme Court. What did he have to say about the class action waiver question?

Opfer: Griffin and the NLRB argued in the Murphy Oil case that employers who require workers to sign arbitration agreements in which they waive the right to sue the company in class actions violate the National Labor Relations Act. He told the justices that workers’ “concerted activity” rights under the NLRA include the right to file class actions.

Griffin told us during the Outlook event that the question is particularly important in the #MeToo era. Class actions allow workers who have been subjected to the same type of harassment on the job to come forward and lodge complaints collectively, Griffin said, noting that there’s a “certain amount of strength in numbers.”

This webinar is now available on demand. Watch it here.

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