#Misclassification

[justinspoliticalcorner]

Lisa Needham at Public Notice:

It’s been barely a week since conservatives on the US Supreme Court radically upended the balance of power between the branches of government, giving the federal courts the exclusive power to interpret statutes rather than deferring to agency experts. And we’re already seeing impacts on the ground. Right-wingers have been in the habit of running to their preferred courts to get regulations overturned, but the decision in Loper Bright v. Raimondo, which officially destroyed agency deference, will make it easier — even routine — to block every Biden administration rule they don’t like.  Lawsuits to invalidate specific rules had been proceeding through the federal courts before Loper Bright, generally arguing that agencies exceeded their authority in promulgating a rule. These lawsuits exist in no small part because the Supreme Court made it clear they would destroy Chevron deference for years now, with Justice Neil Gorsuch having led the way well before his appointment to the Court. 

Trump appointee Sean Jordan, who sits in the reliably hard-right Eastern District of Texas, was so eager to block a Biden administration’s overtime rule that he dropped his decision the same day Loper Bright came out. It runs 36 pages and mentions Loper Bright multiple times, which means either Jordan was so confident of the Supreme Court decision that he either wrote it in advance or he hurried to stuff Loper Bright into his already-written opinion. Jordan’s opinion also rests heavily on dictionary definitions rather than expertise from the Department of Labor, which issued the rule. So now, the rule that would have made 4 million more Texas workers eligible for overtime, and thus more pay, is blocked thanks to a hurried read of a SCOTUS opinion and Webster’s Dictionary. 

What this mean is that anytime a business doesn’t like a federal rule, it can just sue. It promises to be a free-for-all. Three hospitals in New Jersey sued HHS the day Loper Bright came down, saying the agency’s interpretation of a statute governing Medicare reimbursement is unlawful. In another case, filed before Loper Bright, a trucking company challenging the Biden administration’s rule that addressed misclassification of independent contractors filed a memorandum on July 2 arguing that Loper Bright means the court should not defer to the Department of Labor’s interpretation of the law. The next day, Trump appointee Ada Brown of the Northern District of Texas enjoined enforcement of the Biden administration’s rule prohibiting non-compete agreements but limited the injunction to the plaintiffs, which are various pro-business groups like the Chamber of Commerce. 

[...]

Bigotry from the bench

Unsurprisingly, much of the assault on administration rules relates to any regulation that would protect transgender people. Four days after Loper Bright was handed down, another Trump appointee, Judge John W. Broomes in Kansas, enjoined the Department of Education from enforcing its Nondiscrimination on the Basis of Sex in Education Programs rule in Kansas, Alaska, Utah, and Wyoming. The Department of Education spent two years finalizing the rule, which would have prohibited discrimination based on gender identity under Title IX.  The unofficial text of the rule, which runs 1,577 pages with supporting material, is jam-packed with legal analysis. Hundreds of pages are spent explaining how the DOE considered and addressed public comments and the document details the mental health impact of discrimination against LGBTQ students. 

Broomes’s expertise is in natural resource law, a background that does not lend itself to a detailed understanding of Title IX, sex discrimination, or gender identity. But none of that matters. His opinion sneers about “self-professed and potentially ever-changing gender identity” and insists that things like using correct pronouns for students and allowing them to use the bathroom that conforms with their gender identity is an issue of “vast economic” significance. Given that the only costs of the rule are things like updated administrative guidance and perhaps hiring additional Title IX staff, the idea it is a vast economic question is, to put it politely, a reach. Instead, Broomes sided with the conservative plaintiffs, including Moms for Liberty and an Oklahoma student who asserted that using the correct pronouns for other students violated her religious beliefs. Because of this mix of conservative state litigants, private anti-trans groups, and an Oklahoma student, the extent of Broomes’s injunction is even weirder than the patchwork blocking of the HHS rule.

Besides blocking the rule entirely in four states, the rule is also blocked for the schools attended by the members of two private plaintiffs, Young America’s Foundation and Female Athletes United, and all schools attended by the children of members of Moms for Liberty. So now, if you are a transgender student unlucky enough to attend school anywhere in the country where a child of a Moms for Liberty student also attends, you’re out of luck. If your school is free of children of book-banners, you get the protection of the federal rule — unless you live in Kansas, Alaska, Utah, and Wyoming, in which case it doesn’t matter what school you go to.  Over at Law Dork, Chris Geidner has a good rundown of not just how the courts are sledgehammering LGBTQ rights, but also how having courts, rather than regulators, make these decisions results in an uneven patchwork of rulings over a Health and Human Services rule that prohibited health care providers from discriminating based on gender identity. Only five days after Loper Bright was issued, three separate federal courts issued rulings blocking parts of the HHS rule. There’s no chance that William Jung, a Trump appointee to the federal district court for the Middle District of Florida, hadn’t already written most of his decision before Loper Bright was issued, but the case gave him far more ammunition. Fung’s ruling in Florida v. Department of Health and Human Services blocked part of the Nondiscrimination in Health Programs and Activities rule from going into effect — but only in Florida. 

The Loper Bright Enterprises v. Raimondo ruling by the judicial activist MAGA Majority on the Supreme Court is having devastating consequences.

[misclassifiedsp]

Independent Contractor vs. Employee

How can you tell the difference?

Control.

"You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

If an employer-employee relationship exists (regardless of what the relationship is called), then you are not an independent contractor...."

[shareyourideas]

Several Labor Law Basics for the State of California

[thecelestinecollection]

#UrbanIndianHeritageSociety #AmericanIndian #Misclassification #ProtectYourLineage #NoGrandmaKillers https://www.instagram.com/p/CjYFZOcAnWL/?igshid=NGJjMDIxMWI=

[mostlysignssomeportents]

Worker misclassification is a competition issue

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/02/02/upward-redistribution/#bedoya

The brains behind Trump's stolen Supreme Court have detailed plans: they didn't just scheme to pack the court with judges who weren't qualified for – or entitled to – a SCOTUS life-tenure, they also set up a series of cases for that radical court to hear.

Obviously, Dobbs was the big one, but it's only part of a whole procession of trumped-up cases designed to give the court a chance to overturn decades of settled law and create zones of impunity for America's oligarchs and the monopolies that provide them with wealth and power.

One of these cases is Jarkesy, a case designed to allow SCOTUS to euthanize every agency in the US government, stripping them of their powers to fight corporate crime:

https://www.americanprogress.org/article/sec-v-jarkesy-the-threat-to-congressional-and-agency-authority/

The argument goes, "Congress had the power to spell out every possible problem an agency might deal with and to create a list of everything they were allowed to do about these problems. If they didn't, then the agency isn't allowed to act."

This is an Objectively Very Stupid argument, and it takes a heroic act of motivated reasoning to buy it. The whole point of expert agencies is that they're experts and that they might discover new problems in American life, and come up with productive ways of fixing them. If the only way for an agency to address a problem is to wait for Congress to notice it and pass a law about it, then we don't even need agencies – Congress can just be the regulator, as well as the lawmaker.

If there was any doubt that Congress created the agencies as flexible and adaptive hedges against new threats and problems, then the legislative history of the FTC Act should dispel it.

Congress created the FTC through the FTCA because the courts kept misinterpreting its existing antitrust laws, like the Sherman Act. Companies would engage in the most obvious acts of naked, catastrophic fuckery, and judges would say, "Welp, because Congress didn't specifically ban this conduct, I guess it's OK."

So Congress created the FTC with an Act that included a broad authority to investigate and punish "unfair methods of competition." They didn't spell these out – instead, they explicitly said (in Section 5) that it was the FTC's job to determine whether something was unfair, and to act on it:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

The job of the FTC is to investigate unfair conduct before it becomes such a problem that Congress takes action, and to head that conduct off so that it never rises to the level of needing Congressional intervention.

Now, it's true that since the Reagan years, the FTC has grown progressively less interested in using this power, but that's broadly true of all of America's corporate watchdogs. But as the public all over the world has grown ever more furious about corporate abuses and oligarchic wealth, governments everywhere have rediscovered their role as a public protector.

In America, the Biden administration altered the course of history with the appointment of new enforcers in the key anti-monopoly agencies: the FTC and the DOJ's antitrust division. But more importantly, the Biden admin created a detailed, technical plan to use every agency's powers to fight monopoly, in a "whole of government" approach:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

Now, this can give rise to seeming redundancies. Take labor issues. The NLRB is a (potentially) powerful regulator that had been in a coma for decades, but has awoken and taken up labor rights with a fervor and cunning that is a delight to behold:

https://pluralistic.net/2023/09/06/goons-ginks-and-company-finks/#if-blood-be-the-price-of-your-cursed-wealth

At the same time, the FTC has also taken up labor rights, using its much broader powers to do things like ban noncompetes nationwide, unshackling workers from bosses who claim the right to veto who else they can work for:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

But the NLRB doesn't make the FTC redundant, or vice-versa. The NLRB's role is principally reactive, punishing wrongdoing after it occurs. But the FTC has the power to intervene in incipient harms, labor abuses that have not yet risen to the level of NLRB enforcement or new acts of Congress.

This case is made beautifully in Alvaro Bedoya's speech "'Overawed': Worker Misclassification as a Potential Unfair Method of Competition," delivered to the Law Leaders Global Summit in Miami today:

https://www.ftc.gov/system/files/ftc_gov/pdf/Overawed-Speech-02-02-2024.pdf

Bedoya describes why the FTC has turned its attention to the problem of "worker misclassification," in which employees are falsely claimed to be contractors, and thus deprived of the rights that workers are entitled to. Worker misclassification is rampant, and it transfers billions from workers to employers every year. As Bedoya says, 10-30% of employers engage in worker misclassification, allowing them to dodge payment for overtime, Social Security, workers' comp, unemployment insurance, healthcare, retirement and even a minimum wage. Each misclassified worker is between $6k-18k poorer thanks to this scam – a typical misclassified worker sees a one third decline in their earning power. And, of course, each misclassified worker's boss is $6k-$18k richer because of this scam.

It's not just wages, it's workplace safety. One of the most dangerous jobs in the country is construction worker, and worker misclassification is rampant in the sector. That means that construction workers are three times more likely than other workers to lack health insurance.

What's more, misclassified workers can't form unions, because their bosses' fiction treats them as independent contractors, not employees, which means that misclassified construction workers can't join trade unions and demand health-care, or safer workplaces.

Contrast this with, say, cops, who have powerful "unions" that afford them gold-plated health care and lavish compensation, even for imaginary ailments like "contact overdoses" from touching fentanyl – a medical impossibility that still entitles our nation's armed bureaucrats to handsome public compensation:

https://pluralistic.net/2022/01/27/extraordinary-popular-delusions/#onshore-havana-syndrome

Cops have far safer jobs than construction workers, but cops don't get misclassified, so they are able to collect benefits that no other worker – public or private – can hope for.

Not every employer wants to cheat and maim their employees, of course. In Bedoya's speech, he references Sandie Domando, an executive VP at a construction company in Palm Beach Gardens. Domando's company keeps its employees on its books, giving them health-care and other benefits. But when she started bidding against rival firms for jobs funded by the covid stimulus, she couldn't compete – two thirds of those jobs went to other firms that were able to put in cheaper bids. Those bids were cheaper because they were defrauding their workers by misclassifying them. Thus, publicly funded projects were overwhelmingly handed over to fraudulent companies. Fraud becomes a fitness-factor for winning jobs. It's a market for lemons – among employers.

Employee misclassification is a pure transfer from workers to bosses. Bedoya recounts the story of Samuel Talavera, Jr, a short-haul trucker who worked for decades in the Port of Los Angeles. For decades, his job paid well: enough to support his family and even take his kids to Disneyland now and again.

But in 2010, his employer reclassified him as a contractor. They ordered him to buy a new truck – which they financed on a lease-purchase basis – and put him to work for 16 hours stretches in shifts lasting as much as 20 hours per day. Talavera couldn't pick his own hours or pick his routes, but he was still treated as an independent contractor for payroll and labor protection purposes.

This lead to an terrible decline in Talavera's working conditions. He gave up going home between shifts, sleeping in his cab instead. His pay dropped through the floor, thanks to junk-fees that relied on the fiction that he was a contractor. For example, his boss started to charge him rent on the space his truck took up while he was standing by for a job at the port. Other truckers at the port saw paycheck deductions for the toilet-paper in the bathrooms!

Talavera's take-home pay dropped so low that he was bringing home a weekly wage of $112 or $33 (one week, his pay amounted to $0.67). His wife had to work three jobs, and they still had to declare bankruptcy to avoid losing their home. When Talavera's truck needed repairs he couldn't afford, his boss fired him and took back the truck, and Talavera was out the $78,000 he'd paid into it on the lease-purchase plan.

This story – and the many, many others like it from the Port of LA – paint a clear picture of the transfer of wealth from workers to their bosses that comes with worker misclassification. The work that Talavera did in the Port of LA didn't get less valuable when he was misclassified – but the share of that value that Talavera received dropped to as little as $0.67/week.

Worker misclassification is rampant across many sectors, but its handmaiden is technology. The fiction of independence is much easier to maintain when the fine-grained employer-employee control is mediated by an app (think of Uber):

https://pluralistic.net/2023/04/12/algorithmic-wage-discrimination/#fishers-of-men

That's why those scare-stories that AI trucks were going to make truckers obsolete and create an employment crisis were such toxic nonsense. Not only are we unlikely to see self-driving trucks, but the same investors that back AI technology are making bank on companies that practice worker misclassification through the "it's not a crime if we do it with an app" gambit:

https://pluralistic.net/2024/01/11/robots-stole-my-jerb/#computer-says-no

By focusing our attention on a hypothetical employment crisis that will supposedly be caused by future AI developments, tech investors can distract us from the real employment crisis that's created by app-enabled worker misclassification, which is also the source of much of the capital they're plowing into AI.

That's why the FTC's work on misclassification is so urgent. Misclassification is a scam that hurts workers and creates oligarchic power – and it's also a mass-extinction event for good companies that don't cheat their workers, because those honest companies can't compete.

Worker misclassification is having a long-overdue and much needed moment. The revolutionary overthrow of the rotten old leadership at the Teamsters was caused, in part, by a radical wing that promised to focus the Teamsters' firepower on fighting worker misclassification:

https://pluralistic.net/2021/11/19/hoffa-jr-defeated/#teamsters-for-a-democratic-union

This has become a focus of labor organizers all around the world, as worker misclassification-via-smartphone has infected labor markets everywhere:

https://pluralistic.net/2021/09/22/kropotkin-graeber/#an-injury-to-one

Bedoya's speech is a banger, and it reminds us that labor rights and anti-monopoly have always been part of the same project: to rein in corporate power and protect workers from the insatiable greed of the capital class:

https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men

[bitchesgetriches]

“Independent Contractor” My Ass: How to Stop Wage Theft Through Worker Misclassification

Every year, wage theft robs millions of American workers of billions of dollars—and worker misclassification is one of its most widespread, evil forms.

There are crystal-clear guidelines on the difference between independent contractors and employees. And a lot of employers steal from their workers by ignoring them. Today, I’m going to break the differences down for you. See if you recognize yourself, a friend, or a family member in these wage-theft-vulnerable positions.

If you are in a misclassification situation, your employer has stolen your wages. But there’s good news! You have recourse to get my two favorite things: money and justice! You can seek tax reimbursements, backpay, unpaid overtime, worker’s compensation benefits, and more for the years you were misclassified. And you can report your exploitative employer and get them into a wet mess of trouble.

Keep reading.

If you found this helpful, consider joining our Patreon.

[iliterallydecepticanteven]

I have a question - maybe because I am dumb - but you mentioned peanut allergies in your post. Is this allergy common in America? Because I am not American and I have never ever met anyone with that allergy. Or maybe I have and I didn't realize. But I was just never in a situation like this. From elementary school to university: We'd often bring cake or other treats for the class and when asked about allergies, no one ever had an allergy. Maybe I am just the one with the weird situation tho.

So I wouldn't say it's that Americans have or are more likely to have peanut allergies but I would say that it's that Americans have to be super careful about triggering someone's allergies due to legal concerns and liability issues. (Although I have my theories as to why peanut allergies are common in America but that's for another post.) Personally I don't know anyone with a peanut allergy and I would bring in homemade stuff like cookies in elementary school. There was a girl in my elementary school with a cinnamon allergy so she had to make everyone aware of that.

Peanut allergies are also a huge concern because they're always incredibly severe. Unlike other allergies, where the person may be in mild discomfort, most peanut allergies trigger anaphylaxis in people which can kill them unless they receive medical attention. For example, I have a mild kiwi allergy. The fruit makes my mouth break out into an itchy rash. But I never mention it because I can handle it on my own without needing a hospital. Now if kiwis made my throat swell shut I'd be informing everyone everywhere all the time that I couldn't have kiwi because it could kill me. So it really comes down to severity of the allergy.

As for the legal concerns and liability issues, it's not a joke when we say Americans will sue anyone over anything. Personal injury lawyers are everywhere in the American legal scene and often times hired to take on a case because of someone else's negligence, as well as the case money aiding in medical bills from hospitalization (we're not joking when we say our healthcare is stupid expensive). So most people take the better safe than sorry route when it comes to handling food allergies.

[snowie130]

Chapters: 22/22 WE’RE FINISHED! LONG-DISTANCE READERS, LET’S GO!

Fandom: The Grisha Trilogy - Leigh Bardugo, Shadow and Bone (TV) Rating: General Audiences Warnings: No Archive Warnings Apply Relationships: The Darkling | Aleksander Morozova/Alina Starkov, The Darkling | Aleksander Morozova & Alina Starkov, Ivan & Alina Starkov, David Kostyk & Alina Starkov, Ivan & Fedyor Kaminsky, I/F implied Characters: Alina Starkov, Original Characters, The Darkling | Aleksander Morozova, Ivan (The Grisha Trilogy), David Kostyk, Fedyor Kaminsky, Botkin Yul-Erdene, Zoya Nazyalensky, Baghra (The Grisha Trilogy) Additional Tags: Alternate Universe - Canon Divergence, Alina is taken to the Little Palace as a kid, everybody thinks Alina is Inferni, and nobody suspects the truth. so far, author's favorite: the way Alina gets her first amplifier, no beta we die like ships in canon, big brother Ivan, is Alina using her powers without realizing it? well, the kitchen raids have the purpose other than to fatten up our heroine, Angst, Fluff, Humor, Found Family, A Very Different Take on The Meadow Scene, Slytherin Alina, oh just wait for the way ch6 ends!, the strangest object of hero worship EVER, Unwilling Mother Hen Ivan, purely platonic Aleksander & Zoya, Unreliable Narrator, Awkward Romance, I Wrote This Instead of Sleeping, I posted this instead of sleeping..., poorly written Jealousy, Stag Friendly, Love Makes People Blind, it's also not good for the politics, the Muse left me near the end and it shows, The Darkling has a beard, The Darkling has no beard, Both is good, the kissing scene has only four words and i am proud of it, u know those fics where H is sorted Slytherin, but still has some stupid Gryffindor moment from time to time?, thats where Alina is now, the tether is so subtle the author herself has problem with noticing it Series: Part 1 of grisha classification Summary:

What if young Alina was taken to the Little Palace... as Inferni?

[vohannesvotrov]

why can’t there be an easier way to tell a govt agency “uh hey you fucked up your data entry and this could be misleading”

[misclassifiedsp]

Misclassified Standardized Patient

I work as a Professional Standardized Patient. I have worked at 2 universities and 1 hospital. I'm also being taken advantage of by one of the university with their classification of Standardized Patients being Independent Contractors. This tumblr is covering resources on SP work but also the resources I'm using to fight against the misclassification of Independent Contractor.

[fatliberation]

hi, i'm a fat person who is just starting to learn to love and appreciate my body and i'm very new to the fat community and all that.

i was wondering if you could maybe explain the term ob*se and how it is a slur. i've never heard anything about it being a slur before(like i said, i'm very new here) and was wondering if you could tell me the origin and history of the word or mayy provide links to resources about it? i want to know more about fat history and how to support my community but i'm unsure of how to start

Welcome!

Obesity is recognized as a slur by fat communities because it's a stigmatizing term that medicalizes fat bodies, typically in the absence of disease. Aside from the word literally translating to "having eaten oneself fat" in latin, obesity (as a medical diagnosis) straight up doesn't actually exist. The only measure that we have to diagnose people with obesity is the BMI, which has been widely proven to be an ineffective measure of health.

The BMI was created in the 1800s by a statistician named Adolphe Quetelet, who did NOT sudy medicine, to gather statistics of the average height and weight of ONLY white, european, upper-middle class men to assist the government in allocating resources. It was never intended as a measure of individual body fat, build, or health. 

Quetelet is also credited with founding the field of anthropometry, including the racist pseudoscience of phrenology. Quetelet’s l’homme moyen would be used as a measurement of fitness to parent, and as a scientific justification for eugenics.

Studies have observed that about 30% of so-called "normal weight" people are "unhealthy" whereas about 50% of so-called "overweight" people are “healthy”. Thus, using the BMI as an indicator of health results in the misclassification of some 75 million people in the United States alone. "Healthy" lifestyle habits are associated with a significant decrease in mortality regardless of baseline body mass index.  

While epidemiologists use BMI to calculate national "obesity" rates, the distinctions can be arbitrary. In 1998, the National Institutes of Health lowered the overweight threshold from 27.8 to 25—branding roughly 29 million Americans as "overweight" overnight—to match international guidelines. Articles about the "obesity epidemic" often use this pseudo-statistic to create a false fear mongering rate at which the United States is becoming fatter. Critics have also noted that those guidelines were drafted in part by the International Obesity Task Force, whose two principal funders were companies making weight loss drugs. Interesting!!!

So... how can you diagnose a person with a disease (and sell them medications) solely based upon an outdated measure that was never meant to indicate health in the first place? Especially when "obesity” has no proven causative role in the onset of any chronic condition?

There is a reason as to why fatness was declared a disease by the NIH in 1998, and some of it had to do with acknowledging fatness as something that is NOT just about a lack of willpower - but that's a very complicated post for another time. You can learn more about it in the two part series of Maintenance Phase titled The Body Mass Index and The Obesity Epidemic.

Aside from being overtly incorrect as a medical tool, the BMI is used to deny certain medical treatments and gender-affirming care, as well insurance coverage. Employers still often offer bonuses to workers who lower their BMI. Although science recognizes the BMI as deeply flawed, it's going to be tough to get rid of. It has been a long standing and effective tool for the oppression of fat people and the profit of the weight loss industry.

More sources and extra reading material:

How the Use of BMI Fetishizes White Embodiment and Racializes Fat Phobia by Sabrina Strings

The Bizarre and Racist History of the BMI by Aubrey Gordon

The Racist and Problematic History of the Body Mass Index by Adele Jackson-Gibson

What's Wrong With The War on Obesity? by Lily O'Hara, et al.

Fearing The Black Body: The Racial Origins of Fat Phobia by Sabrina Strings

[iww-gnv]

For years, Cristian Céspedes worked as a foreman for a construction contractor, Unforgettable Coatings, in Las Vegas, where he and his co-workers often worked over 60 hours a week without overtime pay. He recalls having to tell workers who were injured on the job that they had to deal with the injury and pay for medical care themselves. He knew the treatment and conditions imposed on himself and his co-workers were wrong, but he didn’t know he could do anything about it. “I always knew stuff was wrong. I just didn’t know where to go to seek help,” said Céspedes, who recently became a union organizer and said a wage theft investigation was kicked off after workers started meeting with local union organizers and learning about their rights. Wage theft is a pervasive problem facing workers throughout the US. According to a 2014 report by the Economic Policy Institute, workers lose over $50bn a year to wage theft from employers. Wage theft includes tactics from stiffing workers on pay, failing to properly pay workers for overtime, minimum wage violations, misclassification of employees as independent contractors, and not providing workers with mandated break times. “We didn’t know our rights or anything like that. We were working over 60 hours a week and not getting paid overtime, and here in Nevada over 40 hours is overtime, so we would work 60 to 80 hours a week and sometimes we had to work for free on Sundays just to finish up a project,” said Céspedes. US regulators are cracking down on wage theft. A 2013 investigation by the Department of Labor recovered $47,393 in unpaid overtime wages to 21 workers in Utah. Last year, the department ordered Unforgettable Coatings and its owner Cory Summerhays to pay 593 workers over $3.6m in stolen wages, damages, interest and penalties.

[i-am-a-giant-siphonophore]

vampire squids!

vampire squids are cephalopods found in temperate or tropical oceans in the deep sea!

the vampire squid actually has a history of misclassification, for a long time they were classified as as an octopus

they live in the oxygen-minimum zone, as there are fewer predators!

vampire squids have the slowest metabolism compared to all other cephalopods

this means that food lasts longer for them!

most other cephalopods are hunters, but the vampire squid is a scavenger

the eyes of a vampire squid are one of the largest eyes in the entire animal kingdom!

[mostlysignssomeportents]

NLRB rules that any union busting triggers automatic union recognition

Tonight (September 6) at 7pm, I'll be hosting Naomi Klein at the LA Public Library for the launch of Doppelganger.

On September 12 at 7pm, I'll be at Toronto's Another Story Bookshop with my new book The Internet Con: How to Seize the Means of Computation.

American support for unions is at its highest level in generations, from 70% (general population) to 88% (Millenials) – and yet, American unionization rates are pathetic.

That's about to change.

The National Labor Relations Board just handed down a landmark ruling – the Cemex case – that "brought worker rights back from the dead."

https://prospect.org/labor/2023-08-28-bidens-nlrb-brings-workers-rights-back/

At issue in Cemex was what the NLRB should do about employers that violate labor law during union drives. For decades, even the most flagrantly illegal union-busting was met with a wrist-slap. For example, if a boss threatened or fired an employee for participating in a union drive, the NLRB would typically issue a small fine and order the employer to re-hire the worker and provide back-pay.

Everyone knows that "a fine is a price." The NLRB's toothless response to cheating presented an easily solved equation for corrupt, union-hating bosses: if the fine amounts to less than the total, lifetime costs of paying a fair wage and offering fair labor conditions, you should cheat – hell, it's practically a fiduciary duty:

https://www.jstor.org/stable/10.1086/468061

Enter the Cemex ruling: once a majority of workers have signed a union card, any Unfair Labor Practice by their employer triggers immediate, automatic recognition of the union. In other words, the NLRB has fitted a tilt sensor in the American labor pinball machine, and if the boss tries to cheat, they automatically lose.

Cemex is a complete 180, a radical transformation of the American labor regulator from a figleaf that legitimized union busting to an actual enforcer, upholding the law that Congress passed, rather than the law that America's oligarchs wish Congress had passed. It represents a turning point in the system of lawless impunity for American plutocracy.

In the words of Frank Wilhoit, it is is a repudiation of the conservative dogma: "There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect":

https://crookedtimber.org/2018/03/21/liberals-against-progressives/#comment-729288

It's also a stunning example of what regulatory competence looks like. The Biden administration is a decidedly mixed bag. On the one hand there are empty suits masquerading as technocrats, champions of the party's centrist wing (slogan: "Everything is fine and change is impossible"):

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

But the progressive, Sanders/Warren wing of the party installed some fantastically competent, hard-charging, principled fighters, who are chapter-and-verse on their regulatory authority and have the courage to use that authority:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

They embody the old joke about the photocopier technician who charges "$1 to kick the photocopier and $79 to know where to kick it." The best Biden appointees have their boots firmly laced, and they're kicking that mother:

https://pluralistic.net/2023/08/16/the-second-best-time-is-now/#the-point-of-a-system-is-what-it-does

One such expert kicker is NLRB General Counsel Jennifer Abruzzo. Abruzzo has taken a series of muscular, bold moves to protect American workers, turning the tide in the class war that the 1% has waged on workers since the Reagan administration. For example, Abruzzo is working to turn worker misclassification – the fiction that an employee is a small business contracting with their boss, a staple of the "gig economy" – into an Unfair Labor Practice:

https://pluralistic.net/2022/01/10/see-you-in-the-funny-papers/bidens-legacy

She's also waging war on robo-scab companies: app-based employment "platforms" like Instawork that are used to recruit workers to cross picket lines, under threat of being blocked from the app and blackballed by hundreds of local employers:

https://pluralistic.net/2023/07/30/computer-says-scab/#instawork

With Cemex, Abruzzo is restoring a century-old labor principle that has been gathering dust for generations: the idea that workers have the right to organize workplace gemocracies without fear of retaliation, harassment, or reprisals.

But as Harold Meyerson writes for The American Prospect, the Cemex ruling has its limits. Even if the NLRB forces and employer to recognize a union, they can't force the employer to bargain in good faith for a union contract. The National Labor Relations Act prohibits the Board from imposing a contract.

That's created a loophole that corrupt bosses have driven entire fleets of trucks through. Workers who attain union recognition face years-long struggles to win a contract, as their bosses walk away from negotiations or offer farcical "bargaining positions" in the expectation that they'll be rejected, prolonging the delay.

Democrats have been trying to fix this loophole since the LBJ years, but they've been repeatedly blocked in the senate. But Abruzzo is a consummate photocopier kicker, and she's taking aim. In Thrive Pet Healthcare, Abruzzo has argued that failing to bargain in good faith for a contract is itself an Unfair Labor Practice. That means the NLRB has the authority to act to correct it – they can't order a contract, but they can order the employer to give workers "wages, benefits, hours, and such that are comparable to those provided by comparable unionized companies in their field."

Mitch McConnell is a piece of shit, but he's no slouch at kicking photocopiers himself. For a whole year, McConnell has blocked senate confirmation hearings to fill a vacant seat on the NLRB. In the short term, this meant that the three Dems on the board were able to hand down these bold rulings without worrying about their GOP colleagues.

But McConnell was playing a long game. Board member Gwynne Wilcox's term is about to expire. If her seat remains vacant, the three remaining board members won't be able to form a quorum, and the NLRB won't be able to do anything.

As Meyerson writes, centrist Dems have refused to push McConnell on this, hoping for comity and not wanting to violate decorum. But Chuck Schumer has finally bestirred himself to fight this issue, and Alaska GOP senator Lisa Murkowski has already broken with her party to move Wilcox's confirmation to a floor vote.

The work of enforcers like DoJ Antitrust Division boss Jonathan Kanter, FTC chair Lina Khan, and SEC chair Gary Gensler is at the heart of Bidenomics: the muscular, fearless deployment of existing regulatory authority to make life better for everyday Americans.

But of course, "existing regulatory authority" isn't the last word. The judges filling stolen seats on the illegitimate Supreme Court had invented the "major questions doctrine" and have used it as a club to attack Biden's photocopier-kickers. There's real danger that Cemex – and other key actions – will get fast-tracked to SCOTUS so the dotards in robes can shatter our dreams for a better America.

Meyerson is cautiously optimistic here. At 40% (!), the Court's approval rating is at a low not seen since the New Deal showdowns. The Supremes don't have an army, they don't have cops, they just have legitimacy. If Americans refuse to acknowledge their decisions, all they can do it sit and stew:

https://pluralistic.net/2023/05/26/mint-the-coin-etc-etc/#blitz-em

The Court knows this. That's why they fume so publicly about attacks on their legitimacy. Without legitimacy, they're nothing. With the Supremes' support at 40% and union support at 70%, any judicial attack on Cemex could trigger term-limits, court-packing, and other doomsday scenarios that will haunt the relatively young judges for decades, as the seats they stole dwindle into irrelevance. Meyerson predicts that this will weigh on them, and may stay their hands.

Meyerson might be wrong, of course. No one ever lost money betting on the self-destructive hubris of Federalist Society judges. But even if he's wrong, his point is important. If the Supremes frustrate the democratic will of the American people, we have to smash the Supremes. Term limits, court-packing, whatever it takes:

https://pluralistic.net/2020/09/20/judicial-equilibria/#pack-the-court

And the more we talk about this – the more we make this consequence explicit – the more it will weigh on them, and the better the chance that they'll surprise us. That's already happening! The Supremes just crushed the Sackler opioid crime-family's dream of keeping their billions in blood-money:

https://pluralistic.net/2023/08/11/justice-delayed/#justice-redeemed

But if it doesn't stop them? If they crush this dream, too? Pack the court. Impose term limits. Make it the issue. Don't apologize, don't shrug it off, don't succumb to learned helplessness. Make it our demand. Make it a litmus test: "If elected, will you vote to pack the court and clear the way for democratic legitimacy?"

Meanwhile, Cemex is already bearing fruit. After an NYC Trader Joe's violated the law to keep Trader Joe's United from organizing a store, the workers there have petitioned to have their union automatically recognized under the Cemex rule:

https://truthout.org/articles/trader-joes-union-files-to-force-company-to-recognize-union-under-new-nlrb-rule/

With the NLRB clearing the regulatory obstacles to union recognition, America's largest unions are awakening from their own long slumbers. For decades, unions have spent a desultory 3% of their budgets on organizing workers into new locals. But a leadership upset in the AFL-CIO has unions ready to catch a wave with the young workers and their 88% approval rating, with a massive planned organizing drive:

https://prospect.org/labor/labors-john-l-lewis-moment/

Meyerson calls on other large unions to follow suit, and the unions seem ready to do so, with new leaders and new militancy at the Teamsters and UAW, and with SEIU members at unionized Starbucks waiting for their first contracts.

Turning union-supporting workers into unionized workers is key to fighting Supreme Court sabotage. Organized labor will give fighters like Abruzzo the political cover she needs to Get Shit Done. A better America is possible. It's within our grasp. Though there is a long way to go, we are winning crucial victories all the time.

The centrist message that everything is fine and change is impossible is designed to demoralize you, to win the fight in your mind so they don't have to win it in the streets and in the jobsite. We don't have to give them that victory. It's ours for the taking.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/09/06/goons-ginks-and-company-finks

[bitchesgetriches]

“Independent Contractor” My Ass: How to Stop Wage Theft Through Worker Misclassification

Every year, wage theft robs millions of American workers of billions of dollars—and worker misclassification is one of its most widespread, evil forms.

There are crystal-clear guidelines on the difference between independent contractors and employees. And a lot of employers steal from their workers by ignoring them. Today, I’m going to break the differences down for you. See if you recognize yourself, a friend, or a family member in these wage-theft-vulnerable positions.

If you are in a misclassification situation, your employer has stolen your wages. But there’s good news! You have recourse to get my two favorite things: money and justice! You can seek tax reimbursements, backpay, unpaid overtime, worker’s compensation benefits, and more for the years you were misclassified. And you can report your exploitative employer and get them into a wet mess of trouble.

Keep reading.

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[hollydogs]

SCP-166 is tentatively classified as a low-threat Euclid, mostly due to the difficulties it poses to standard humanoid containment.

There is a singular Foundation employee who recognizes this as the gross misclassification it is. He can never let anyone find out about this.