Archive for August, 2018

Trump’s Law and Order Campaign Skips the Workplace

Thursday, August 23rd, 2018

The Trump Administration has left little doubt that one of its main missions is to roll back the regulatory initiatives of the Obama years, especially the Clean Power Plan and the Consumer Financial Protection Bureau. Although Trump has been less overt about it, his corporate-friendly approach also includes weakening rules that have been around for decades.

An important case in point concerns the Fair Labor Standards Act, the key federal wage and hour law that was signed into law 80 years ago by President Franklin Roosevelt. The culmination of decades of struggle over excessive workweeks, inadequate pay levels and child labor, the FLSA put the federal government in the business of combatting wage theft and other forms of workplace exploitation.

It accomplished that through a system of workplace investigations and the imposition of financial penalties on employers large and small. In a move that has received limited attention, the Trump Labor Department is seeking to replace rigorous enforcement with a system called Payroll Audit Independent Determination (or PAID) that puts employers on the honor system. Beginning with the dubious premise that wage and hour violations mainly derive from inadvertent mistakes made by managers, PAID will encourage employers to report irregularities on their own. When they do they will still have to pay back wages but will not be assessed damages or penalties.

Such a system makes a mockery of real enforcement. What makes matters worse is that PAID, which is being billed as a pilot program for now, is being pursued right after the U.S. Supreme Court’s disastrous Epic Systems ruling. That decision affirms the right of employers to compel workers to sign mandatory arbitration agreements that would severely curtail their ability to bring collective action lawsuits. As my colleagues and I at the Corporate Research Project and Jobs With Justice Education Fund showed in a recent report, these lawsuits have allowed workers to recover billions of dollars from large corporations.

PAID was featured in a recent NBC News feature on how the Trump Administration is relaxing regulatory enforcement in numerous areas. This prompted a group of Democratic Senators to express concern about PAID to the DOL, whose spokesperson responded that it was “premature to comment” on the program.

The controversy over PAID comes amid growing concern about the prevalence of wage theft. Some of those abuses apparently exist right inside the federal government. The Labor Department, which has not yet left the investigation business, is reported to be examining the practices of a company called Seven Hills, which manages the food court at the Pentagon.

Faced with the prospect of diminished DOL enforcement and restrictions on lawsuits, activists are looking to other solutions. Some of the most encouraging work is happening at the local and state levels. For example, Centro de Trabajadores Unidos en la Lucha (Center for Workers United in Struggle) is pressing Minneapolis Mayor Jacob Frey and the City Council to pass an ordinance dealing with wage theft.

In some parts of the country, law enforcement officials are taking the term wage theft literally and treating it as a criminal offense. For example, after a joint investigation by the Washington State Attorney General’s Office and the Department of Labor & Industries, a construction company and its owner pled guilty last month to a criminal charge of first-degree theft. Earlier this month, the New York Attorney General and the Inspector General of the Port Authority announced the arrest of a contractor for failing to pay prevailing wages at a publicly-funded construction project at LaGuardia Airport.

While it would be terrible to see DOL’s wage and hour enforcement system dismantled, there are other ways rogue employers can be brought to justice.

Can Large Corporations Be Made Accountable?

Thursday, August 16th, 2018

Kudos to Sen. Elizabeth Warren for introducing a piece of legislation that filters out all the political noise and goes to the heart of one of the most pressing issues of the day: what can be done to change the behavior of large irresponsible corporations? Her answer: quite a lot.

The key to Warren’s newly introduced Accountable Capitalism Act is a proposal – similar to one pushed by Ralph Nader starting in the 1970s – to end the monopoly that states have had on the chartering of corporations. Beginning in the late 19th Century, that system brought about a disastrous race to the bottom as states competed with one another for registrations by lowering their standards toward the vanishing point. Delaware won that competition and is now the chartering mecca for big business.

Warren’s bill would not eliminate state charters but would require large corporations, defined as those with $1 billion or more in gross receipts, to obtain a federal charter from a new agency created within the Department of Commerce. These “United States corporations” would be subject to a strict set of controls. First of all, they would be required to act in a way that creates “a general public benefit” and that balances the interests of shareholders with those of employees, consumers, communities and the environment.

To promote that end, employees of these corporations would get to choose two-fifths of the members of the board of directors. To discourage policymaking aimed at short-term stock gains, directors and officers would be prohibited from selling their shares for five years after obtaining them. To discourage improper involvement in the political process, these corporations would be barred from using company funds for political expenditures unless 75 percent of the board and 75 percent of shareholders approve.

Yet perhaps most important are the provisions relating to charter revocation. In theory, states have the power to revoke the charter of a corporation that engages in serious misconduct, but they almost never exercise that power. Warren’s bill would allow a state attorney general to petition the federal corporation office to revoke the charter of a company that has engaged in “repeated, egregious, and illegal misconduct” that has caused harm to customers, employees, shareholders or the communities in which the firm operates. That sounds a lot like the track record of a corporation like Wells Fargo.

Warren’s bill would go a long way to rein in large corporate miscreants. Of course, it has little chance of passage in the current Congress. Those circumstances may change, in which case Warren might want to consider some alterations to the bill to address a danger that would exist if someone like Donald Trump were in the White House.

We’ve just seen how Trump is using the power of his office to punish a critic such as former CIA director John Brennan by revoking his security clearance. If Warren’s federal chartering system were in effect, someone like Trump might try to revoke the charter of a corporation he dislikes. If Warren is going to use the federal government to restrain rogue corporations, she needs to make provisions for a rogue president as well.

Fake Environmental Regulation?

Thursday, August 9th, 2018

The Trump Administration likes to play with fire. Now it may be playing with a fire-resistant material that is also a deadly carcinogen. After years of receding as a public health threat, asbestos could make a comeback.

When Donald Trump joined his father in the New York real estate business in the late 1960s, the use of asbestos in high-rise construction was widespread. Yet within a few years it was revealed that the substance was highly dangerous for those who mined it, those who processed it and those who applied it. The hazard had actually been known for decades but had been kept secret by companies such as Johns-Manville in one of the most egregious corporate deceptions of the 20th Century. Paul Brodeur’s 1985 book on the subject was called Outrageous Misconduct.

Asbestos producers and users were hit with tens of thousands of lawsuits, which forced Manville and other companies into bankruptcy. Use of the material was largely eliminated and vast sums were spent to remove existing asbestos from countless buildings.

Donald Trump appears to be ignorant of this history. In 2012 he tweeted his support for asbestos, claiming that if it had been more widely used in the old World Trade Center the Twin Towers would have survived the 9/11 attack. He did not mention that asbestos fibers were present in the dust clouds generated by the disaster and are believed to be among the causes of the high rate of cancer among first responders and Ground Zero workers.

In recent days there have been reports suggesting that Trump’s Environmental Protection Agency might be putting the president’s pro-asbestos sentiments into action.  In early July the EPA issued what is known as a significant new use rule (or SNUR), inviting manufacturers to petition the agency to seek approval for asbestos products. An article in Fast Company sounded the alarm, stating that the EPA “has made it easier for companies to begin using asbestos again.”

The EPA is vehemently denying that is the case, insisting that it is actually strengthening asbestos regulation. An agency scientist told CNN that “the SNUR is really a good news story for public health protection.” The argument is that the rule would allow the EPA on a case-by-case basis to impose restrictions that may not currently exist. Unfortunately, it’s true that the United States, unlike many other countries, never fully banned the use of asbestos.

It is difficult to believe that the EPA, which has engaged in a deregulatory frenzy since Trump took office, will suddenly abandon its industry friends and embrace public health considerations in responding to new asbestos proposals.

One industry player, the Russian asbestos producer Uralasbest, apparently does not think so. The company, encouraged by the EPA’s reluctance to push for a total ban on the material, is decorating its shipments with a seal of approval containing Trump’s face and the statement “Approved by Donald Trump, the 45th President of the United States.”

A Brazen Corporate Miscreant

Thursday, August 2nd, 2018

The Justice Department and the federal regulatory agencies have been less than energetic in prosecuting corporate crime and misconduct lately, so it was interesting to see the DOJ announcement that it had gotten Wells Fargo to fork over $2 billion to resolve a case involving mortgage-backed securities.

Before thinking that the Trump Justice Department is getting tougher on business offenders, it is important to keep in mind that this is a holdover matter from the prosecution of the big banks by the Obama DOJ in the wake of the financial meltdown. Most of the other banks settled their toxic securities cases long ago.

Wells held out and has now been rewarded by the Trump DOJ with a settlement that is substantially smaller than the ones that preceded it. JPMorgan Chase settled for $13 billion in 2013 and Bank of America for $16 billion the following year.

If anything, Wells should have been forced to pay out more to penalize it for its resistance. Moreover, during the years since its competitors resolved their cases, a tsunami of negative revelations have occurred regarding the other misconduct of Wells.

In fact, it has almost seemed that Wells was in a contest with Volkswagen to be crowned the most brazen corporate miscreant. Nearly two years ago, the scandal erupted regarding the bank’s widespread practice of secretly opening vast numbers of unauthorized customer accounts in order to generate illicit fees (the number of bogus accounts would turn out to be several million). This was followed by a series of other allegations such as charging 800,000 car loan customers for insurance they did not need.

Earlier this year, the Federal Reserve took the unprecedented step of barring Wells Fargo from growing any larger until it cleaned up its business practices. The agency also announced that the bank had been pressured to replace four members of its board of directors.

The actions of Wells were so egregious that even Mick Mulvaney, who took over the Consumer Financial Protection Bureau with the aim of defanging it, agreed in April to have the agency join with the Office of the Comptroller of the Currency to fine the bank a total of $1 billion for selling unnecessary products to customers and other improper practices.

The recent misdeeds of Wells share characteristics with the behavior outlined in the DOJ’s case. The bank appears to have been just as systematic and shameless in its deceptive mortgage practices as it was in generating bogus accounts. It seems that Wells managed to incorporate fraud into its business model in a seamless manner.

If any defendant was undeserving of preferential treatment, Wells Fargo is it.