[See DISCLAIMER below.]
Last week, the Washington Post ran an article (in full here) about a labor dispute between management and unionized staff within the Bernie Sanders campaign.
The crux of the dispute stems from campaign field organizers’ assertion that they are being paid a salary of $36,000 but “working 60 hours per week at minimum, dropping their average hourly pay to less than $13.”
While many focused on the apparent hypocrisy of Sanders paying his own workers less than the $15 minimum wage he touts out on the campaign trail, Sanders quickly addressed the problem by reducing the staffers’ hours.
Although Sanders may have dodged the PR dilemma, there are several potentially-bigger issues (and questions) that the Washington Post article exposed.
1. Is the Sanders campaign misclassifying non-exempt employees as exempt?
Most employers (and their employees) in the United States are governed by federal laws (as well as individual state laws).
One of those federal laws is the Fair Labor Standards Act (FLSA) of 1938.
Among other things (like banning child labor), the FLSA mandates that employers pay employees the minimum wage, as well as overtime after 40 hours of work…unless they are classified as exempt from the FLSA.
It seems pretty clear from the Washington Post article that Sanders is treating his field organizers as exempt salaried employees. But, are they?
With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations (promulgated by the U.S. Department of Labor). Most employees must meet all three “tests” to be exempt.
It seems clear that the Sanders team is in compliance with part (a) and (b) as listed above, but what about part (c)?
Are the field organizers actually doing “outside sales” (exempt), or are they doing “inside sales” (non-exempt) in compliance with the Department of Labor’s salary test [see DOL fact sheet in PDF here]?
- One side note: If a field organizer takes a few days off (e.g., to visit family or some other non-protected reason), does the Sanders campaign dock that employee’s pay? If so, that could also put the employee into a non-exempt category.
[If, in the off-chance, the Sanders campaign is classifying its employees as “independent contractors, that opens up a whole new set of hypocritical issues for the socialist senator.]
The union and the Sanders campaign reached a collective bargaining agreement that went into effect on May 2 and expires on March 31, 2021.
Once an employee representative has been designated by a majority of the employees in an appropriate unit, the Act makes that representative the exclusive bargaining agent for all employees in the unit….Once a collective-bargaining representative has been designated or selected by its employees, it is illegal for an employer to bargain with individual employees, with a group of employees, or with another employee representative.
While the actual facts of the meeting may differ from what was reported in the Washington Post, if they are indeed accurate and management met directly with unionized employees, either campaign staffers or their union (the UFCW), if they wanted to, could file unfair labor practice charges against campaign management with the National Labor Relations Board.
He [Sanders] also expressed frustration that staffers had taken their complaints to the media.
“It does bother me that people are going outside of the process and going to the media,” he said. “That is really not acceptable. It is really not what labor negotiations are about, and it’s improper.”
Sanders said, ahead of a weekend Iowa campaign swing: “We are disappointed that some individuals have decided to damage the integrity of these efforts. We are involved in negotiations. And some are individuals that have decided to damage the integrity of that process before they were concluded.”
Although the Senator may not realize it, employees are afforded many rights under Section Seven of the National Labor Relations Act.
Among those rights are the right to engaged in “protected, concerted activity” (with or without a union).
Prohibiting employees against talking to the press about their wages or working conditions could be deemed unlawful.
In fact, only recently, the NLRB issued further clarification on this point:
In a memo released on April 15, the agency evaluated a case where a company maintained a policy that prohibited employees from speaking to the media at any time. The NLRB found this rule to be unlawful and explained: “Employees have a statutory right to speak publically about their complaints or concerns with their terms and conditions of employment, including to the press, without employer authorization.”
Despite the fact that he is running a political campaign, Sanders is an employer–and like the CEO of his campaign.
If employees were to interpret his statements as potential threats that adverse action may be taken against them for speaking to the press, Sanders could have charges filed against him.
As stated above, beside the press accounts as reported, it is uncertain what the actual facts are. However, as described, the reporters’ accounts may, in fact, warrant a closer look into whether or not Bernie Sanders and his campaign are violating its workers’ rights.
“Truth isn’t mean. It’s truth.”
Andrew Breitbart (1968-2012)
Cross-posted from LaborUnionReport.com