Punching In: Unions Gear Up for Georgia Runoff Canvassing Drive

Monday morning musings for workplace watchers.

Election Post Mortem|Lawsuit Attacks OSHA Powers

Rebecca Rainey: Now that most races have been called, unions key to Democrats’ better-than-expected performance in the 2022 midterms say they’re already gearing up for the Georgia runoff set to take place Dec. 6.

Unite Here’s operation to get out the vote knocked on 2.7 million doors in the battleground states of Nevada, Arizona, Pennsylvania, and Georgia, all races that helped Democrats retain control of the Senate, the union said.

Now, leaders of Unite Here say they are planning to bring the “full force” of their program to Georgia ahead of the runoff election between incumbent Democrat Sen. Raphael Warnock and Republican nominee Herschel Walker. This isn’t their first foray into Georgia politics. Unite Here says in 2020 it knocked on 1.6 million doors for Warnock in the lead-up to the last Senate runoff held in 2021.

Part of the union’s midterm strategy was also to recruit new members while knocking on doors. Members of the Unite Here Philadelphia campaign passed along information about the labor union’s hospitality worker training program—which offers the guarantee of placement in a union job—before even discussing the election with potential voters.

Since March, they have placed 99 workers in union jobs as part of the effort in Philadelphia, according to the union.

A member of Unite Here’s Workers to the Front prepares volunteers to canvass in Philadelphia, Pa., on Aug. 31, 2022.

Photo by Rebecca Rainey/Bloomberg Law

Over at DOL, the Wage and Hour Division has had the care industry in its crosshairs. The wage division’s ongoing enforcement initiative has netted $28.6 million in back wages and damages for nearly 25,000 workers since launching the effort last year.

The agency found violations in 80% of the more than 1,600 investigations conducted as part of the drive, focusing on residential care facilities, nursing facilities, and home health providers, resulting in nearly $1.3 million in civil monetary penalties for employers caught willfully violating the law, according to an announcement last week.

The DOL’s wage arm said common citations included violations of overtime or minimum wage requirements and the misclassification of employees as independent contractors.

Last week alone, the WHD issued four press releases touting nearly $2 million total in back wages and damages for at least 917 workers who were misclassified or shorted of overtime pay at nursing and home health care firms in Texas, Louisiana, and Pennsylvania.

Those cases are:

• Ace Primary Homecare, Inc.; Guardian Angels Care Services, Inc.; Fernandez Care Assistance LLC, and the Association for the Advancement of Mexican Americans
• 5 Caring Hearts LLC
• Spring Creek SNF LLC and Franklin Center OPCO LLC
• Heaven on Earth Network Inc.

Bruce Rolfsen: OSHA could face “sweeping” changes to its regulations if a federal lawsuit backed by the National Association of Home Builders succeeds.

The lawsuit, now with the US Court of Appeals for the Sixth Circuit in Cincinnati, asks the court to find that Congress in 1970 delegated unconstitutional powers to the Occupational Safety and Health Administration for deciding which safety hazards to regulate and setting penalties.

Allstates Refractory Contractors LLC of Waterville, Ohio, a general contractor that specializes in industrial projects at glass, metal, and petrochemical plants, filed the case.

It asks the court to prevent OSHA from enforcing safety rules that weren’t adopted in the early 1970s from industry consensus standards and proposing fines.

The case was appealed to the Sixth Circuit after a federal judge in Ohio dismissedAllstates’ claims.

In a Nov. 8 brief to the appellate court, attorneys for Allstates declared the law creating OSHA, the Occupational Safety and Health Act of 1970, “gives OSHA the power to make whatever safety rules it thinks appropriate, based on nothing more than its own subjective judgment.”

The National Association of Home Builders and the National Federation of Independent Business filed an amicus brief supporting the lawsuit on Nov. 15.

“The unbounded and sweeping delegation to OSHA of the powers both to create workplace-safety standards—a legislative function—and then to enforce those rules against countless employers cannot be tolerated under existing precedent,” the trade associations’ brief said.

The groups argued that a decision against OSHA wouldn’t likely be catastrophic.“There is no reason to believe that any significant number of safety standards would fall as a result of following the Constitution’s mandate,” it said.

OSHA didn’t respond to a request to discuss the lawsuit, and hasn’t yet filed a response brief with the Sixth Circuit. Oral arguments haven’t been scheduled.

However, in a brief filed when the lawsuit was heard in district court, Department of Labor attorneys wrote “It is hard to overstate the breathtaking scope of the relief sought.”

“Allstates asks this Court to invalidate every single occupational safety standard that the Occupational Safety and Health Administration and the Secretary of the Department of Labor have ever issued in the 50 years since Congress delegated the authority to issue safety standards in the Occupational Safety and Health Act,” it said.

Tom Ward, the NAHB’s vice president for legal affairs, said in an interview that a final decision to reverse OSHA rules could have to come from the US Supreme Court.

And a decision that Congress delegated too much rulemaking power could also have wide ranging effects on other enforcement agencies that regulate construction, such as the Environmental Protection Agency, Ward said.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.