Senate GOP Needs To Stop NLRB Reconfirmation

GOP Senate Needs To Show Up To Work And Block Biden NLRB Chair Pick

By Rick Manning

President Joe Biden is engaged in an end of presidency power play to keep Democrat control over the National Labor Relations Board (NLRB) by pushing a renewal of current chair Lauren McFerran to another term. Senate Republicans should do everything in their power to stop this power play and allow newly elected President Donald Trump to name the next Chairperson. This means that they have to all show up to each lame duck Senate session to stop any funny business.

While the NLRB is a somewhat obscure agency, it is significant as it governs the rules for unionization of the private sector workforce. 

Among the absurd decisions made by McFerran’s NLRB, a company fired two employees for covering up a surveillance camera and making a threatening joke about another employee’s sexual orientation. Both fired employees admitted to their actions. Yet, McFerran’s NLRB ruled the firing illegal because the employees had in the past engaged in union organizing activity.

The decision was overturned in federal court which called it “nonsense”.

Another of many examples of McFerran putting the whole weight of her body on the side of protecting repulsive behavior occurred in the Liam Elastomers case where employees involved in union organizing activity were protected from discipline or discharge even if they have engaged in racist, sexist and/or profane behavior in the workplace. Apparently in McFerran world, being a racist lout disrupting the workplace is allowable so long as you can contend that you are a union organizer.

Adjusting to the ebbs and flows of American politics are normal in D.C. It is not surprising that the outgoing Biden administration would attempt to hamstring their successor by locking in appointees during the succession.

However, it would be unconscionable if Senate Republicans failed to show up to work in the lame duck session, allowing the Biden administration to subvert the Trump administration through the confirmation of leadership to important policy making bodies like the NLRB.

Let’s be clear. This extension of Democrat control over this important agency that micromanages down to the level of who can be and who can’t be fired, is a direct attack on the Donald Trump presidency and his ability to make his mark.

We have seen some GOP senators hold Trump cabinet and other nominees to a higher standard than they held those proposed by President Biden four years ago. Now, incoming Senate Majority Leader John Thune (R-S.D.) has to show his leadership by uniting his conference in showing up to work so Democrats cannot change law or hamstring President-elect Trump by extending the Biden presidency past Jan. 20, 2025.

America spoke. America wants Donald Trump to lead the country. Senate Republicans have a responsibility to do their part in making that happen. Not only should they give Donald Trump the cabinet he wants, just as they did for his predecessor, they should end the Democrats’ attempt to extend the Biden presidency.  Showing up for work and blocking the confirmation of Biden’s NLRB chair is an important step in allowing Donald Trump to put his team in place as he seeks to restore America’s place in the world and economic prosperity.

Rick Manning is the President of Americans for Limited Government.

To view online: https://dailytorch.com/2024/12/gop-senate-needs-to-show-up-to-work-and-block-biden-nlrb-chair-pick/

Cartoon: Parting Gift

By A.F. Branco

Click here for a higher resolution version.

To view online: https://dailytorch.com/2024/12/cartoon-parting-gift/

Biden Hands Trump Weakening Economy As Unemployment Ticks Up Another 161,000 In November

By Robert Romano

The unemployment rate in the U.S. ticked upwards to 4.2 percent in November, with 161,000 additional Americans saying they are unemployed in the latest household survey by the Bureau of Labor Statistics.

Unemployment overall is up from its Dec. 2022 low of about 5.7 million to its current level of 7.14 million, an increase of almost 1.45 million. That is generally not unexpected in an environment where inflation has cooled from its peak of 9.1 percent in June 2022 to its current level of 2.6 percent.

What is occurring is that following peak inflation, American households tend to max out their credit, purchases slow down and so do price increases amid lower demand, and eventually, layoffs start ensuing.

In fact, in the household survey, since Nov. 2023, there are 725,000 fewer Americans saying they have jobs. So, peak employment has come and gone. Yet one more potential reason why the incumbent Democrats were ousted and President-elect Donald Trump and Republicans won the White House, House and Senate in 2024.

With a little more than a month to go in President Joe Biden’s term, that means he is handing off an economy that is generally getting weaker by the minute. A much different situation than when he was entering office. Following the brief Covid pandemic recession, beginning in April 2020 through Jan. 2021, the U.S. economy had already added back 16.6 million jobs of the 25 million jobs lost, a pace that largely continued through 2021 and beyond.

But now that trend has reversed, with the more Americans reporting they are unemployed now, creating a challenge for the incoming Trump administration. Is it a recession?

Maybe, but even if it was, those are not necessarily fatal early in presidential terms politically. For example, Richard Nixon, Ronald Reagan, Barack Obama and George W. Bush all had recessions during their first terms and went on to get reelected. Trump obviously is in his second term, but it’s a non-consecutive term, with the presumed heir being Vice President-elect J.D. Vance, who will inherit whatever the economic situation happens to be — particularly the employment, incomes and inflation numbers are those to watch — come 2028.

In every case, there were economic recoveries already well under way by the time the next presidential election cycle came around and so the White House incumbent parties were not impacted.

Even sooner, however, Republicans in the 2026 Congressional midterms might also be impacted by any economic turbulence that might be on the horizon. Certainly, Republicans are already articulating extending the Trump tax cuts to be a top priority while they still have majorities to do so under budget reconciliation.

But those do not necessarily stop recessions. Both Reagan and Bush enacted tax cuts in the first years of their administrations, and recessions happened all the same beginning in July 1981 and March 2001, respectively, not because of the policies, but because the present economic boom-to-bust cycles had run their course. In the early 1980s, the economy was overheated from inflation and in 2001, it was overheated from the 1990s boom.

Same with enacting regulatory cuts, with both Republican administrations doing so but there still being recessions, again, not because of those policies, but because that’s where we were in the economic cycle.

A good question could be what is tax and regulatory environment coming out of a slowdown or a recession, and whether the booms that followed could be credited to the incumbent administration, as they both were in 1984 and 2004. Get it right, and voters reward the incumbents. Get it wrong, ask Jimmy Carter, George H.W. Bush or Joe Biden, and that could be it. As usual, stay tuned.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

Jeremy Wolfe: Why independent contractor rules matter for trucking

By Jeremy Wolfe

The trucking industry has strong opinions about regulators’ independent contractor classification rules. But how important are these rules? The classification concerns a regulation that has little effect on the industry and a population that makes up a minority of total drivers.

“It’s a smaller percentage of the overall group of drivers, but it is very important—both to those individuals that decide to go down that route and also to the companies that work with them,” Nathan Mehrens, VP of workforce policy for the American Trucking Associations, told FleetOwner.

Independent contractors are a significant part of many carriers’ operations. The regulation also has wide-reaching implications for several labor laws, affecting everything from taxes to inward facing cameras.

How much of the industry runs on contractors?

A lot of drivers work as independent contractors and could be affected by rule. Even though independent drivers make up a minority of total interstate drivers, they are an essential part of many sectors.

A minority of total drivers

Statistics behind the exact numbers of independent contractors are fuzzy, but independent owner-operators make up roughly 10% of truck drivers.

Nationally, the total number of independent contractors sits somewhere between 16 million and 27 million, according to the Center for American Progress. Counting only the trucking industry’s independent contractors is more tricky. Most federal labor statistics conflate owner-operators with independent contractors—which are not always the same thing.

There are more than 3.5 million interstate truck drivers in the U.S. and over 8.7 million regulated commercial drivers, according to FleetOwner’s 2023 Trucking by the Numbers. The Bureau of Labor Statistics estimated there were 293,900 independent owner-operator drivers in 2022, which BLS estimated was 7.5% of all truck drivers. FMCSA estimated 922,854 owner-operators in November 2023, potentially comprising 11% of all truck drivers. Roughly 350,000 truck drivers are owner-operators according to the Owner-Operator Independent Drivers Association.

Owner-operators have cultural value

Owner-operators are an essential part of trucking’s mainstream cultural presence. The cultural image of truck drivers as outlaws and cowboys is particularly suited for independent workers who own their equipment.

Shows like A&E’s Shipping Wars follow truckers throughout their adventures in hauling independently. Smokey and the Bandit, a classic film and American cultural touchstone, shares the exploits of an independent (though illegal) trucking operation.

Wikipedia hosts a webpage dedicated entirely to trucking in U.S. culture, where independent owner-operators receive significant representation.

Contractor importance varies by sector

The importance of independent drivers depends on the market. For some sectors, independent contractors are a major component of the driver workforce.

The Truckload Carriers Association pays close attention to carrier-contractor relationships and maintains a policy committee on independent contractor practices.

“Many of our members are using independent contractors to their fullest extent, improving their businesses, and we want to encourage that,” David Heller, SVP of safety and government affairs for TCA, told FleetOwner. “We pride ourselves on saying our carrier members are using this relationship the right way and the way it’s designed to be used.”

The issue is also important for OOIDA and its members.

“A large portion of our membership is made up of independent contractors, so it’s something that is very important for our members and something we’ve been tracking very closely,” Bryce Mongeon, director of legislative affairs for OOIDA, said.

For other sectors, like the National Private Truck Council, contractor classification is less relevant.

“Fewer than 10% of NPTC members use owner-operators who would be considered independent contractor drivers,” Rick Schweitzer, legal counsel for NPTC, told FleetOwner. “Of those 10% or fewer companies, I’m sure it’s a minority of their drivers who would be considered independent contractors to begin with, so this is a relatively minor issue for them.”

The classification affects several laws

The contentious rulemakings behind independent contractor classification only deal with one law: the Federal Labor Standards Act. The law has little relevance for truck drivers. However, the classification brings repercussions for several other laws.

How FLSA applies to drivers

At its most basic level, the classification at issue decides whether a worker can receive FLSA protections as an employee.

“It is an interpretation of the standard used for who will be considered an employee under the Fair Labor Standards Act,” Schweitzer explained.

FLSA protections are important for most of the U.S. workforce; the law regulates overtime, minimum wage, recordkeeping, and child labor. Under the law, independent contractors do not receive FLSA protections, while employees do.

However, truck drivers have a lot of exemptions to the law. Unique rules apply to drivers’ overtime limits and age requirements. Minimum wage is the most relevant FLSA provision for drivers.

But even minimum wage may not be very relevant, as Scopelitis’s president and managing partner Greg Feary said earlier this year. Feary said most motor carriers already pay above the $7.25 per hour federal minimum wage.

Feary suggested that, because of its small potential impact, the independent contractor rule will not see much enforcement in the truckload sector. FLSA protections would have little effect on drivers’ careers.

“My point is, even though the Department of Labor has 10,000 enforcement officers, do you expend resources on an industry that the juice isn't really worth the squeeze? So we'll see,” Feary said at the Truckload Carrier Association’s annual conference. “I think the smaller-vehicle courier industry, with a little different dynamic, is probably a little bit more worried.”

On the other hand, some of the most scandalous case studies of worker misclassification concern the trucking industry—particularly port operations.

Repercussions for other laws

FLSA is far from the only regulation that distinguishes between independent contractors and employees.

The classification matters for a heap of other acronyms, including NLRA, FUTA, FICA, FMLA, OSHA, and ACA. Each organization in charge of executing those laws has its own classification guidance. And that is only at the federal level. State laws further complicate the issue.

An employer could hypothetically use separate classifications for separate laws—but that rarely happens.

“I don’t think that many, if any, employers are going to have employees for purposes of FLSA and then classify them as contractors for other acts,” Mehrens said. “The analysis gets really messy to try and do that.”

The Department of Labor recognized that its rulemaking would likely affect all other contractor classifications.

“Although this rule only addresses whether a worker is an employee or an independent contractor under the FLSA, the Department assumes in this analysis that employers are likely to keep the status of most workers the same across all benefits and requirements, included for tax purposes,” the DOL said in its latest rule.

The independent contractor rule could therefore promote much more than a minimum wage; it has a ripple effect across unionization, inward facing cameras, taxation, workplace safety, unemployment, insurance, time off, sick days, and much more.

A cost difference between employees and contractors

There is a cumulative cost to all these classifications. The regulations make for an expensive distinction. An employee can cost 30% more than an independent contractor, as economist Robert Habans writes.

However, in his research, Habans also found that the cost disparity for trucking was the opposite. Employee drivers may cost 3% less than independent contractors, without consideration for some related costs such as human resources.

ALG Editor’s Note: Nathan Mehrens is a former President of Americans for Limited Government Foundation.

To view online: https://www.fleetowner.com/operations/article/55248149/why-independent-contractor-classification-matters-for-carriers