A Washington Post article last week exposed three areas where the Bernie Sanders campaign *may* be violating workplace laws. Since then, Sanders himself exposed another possible violation.
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?
“Employees whose jobs are governed by the FLSA are either ‘exempt’ or ‘nonexempt,'” according to one legal summary. “Nonexempt employees are entitled to overtime pay. Exempt employees are not.”
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.
2. If employees are indeed misclassified, a) was it willful, and b) does the Sanders campaign owe back pay for overtime?
If Sanders has misclassified employees, his campaign may owe campaign workers a lot of money.
As noted here last week, “if the Sanders campaign workers are not exempt from the FLSA and are entitled to overtime, they should be making nearly $26 per hour for every hour worked over 40 instead of the $12 they’re averaging now.”
If, for example, the workers are entitled to overtime, worked 60 hours and were not paid for it, Sanders may owe each of them hundreds of dollars for each week they worked between 40 and 60 hours.
If there are willful violations, the Department of Labor has the ability to impose treble damages.
Ironically, Sanders (and other Democrats) have been outspoken in asking the Department of Labor to investigate employers they believe have misclassified employees under the FLSA.
Perhaps the same should be asked for the Sanders campaign?
3. Was Sanders’ campaign management direct dealing with unionized staff?
In May, Bernie Sanders proudly announced to the media that his campaign staffers had unionized with the United Food & Commercial Workers (UFCW), Local 400.
While it remains unclear whether Sanders and his campaign management encouraged unionization (which, itself, could be deemed coercive under the National Labor Relations Act), one passage in the Washington Post’s article bears some scrutiny:
First this (from the Washington Post):
The union and the Sanders campaign reached a collective bargaining agreement that went into effect on May 2 and expires on March 31, 2021.
If the Washington Post article is stating the facts correctly (a big ‘if’), Bernie Sanders’ campaign got a signed-union contract on May 2.
Then, after the contract went into effect, Sanders campaign manager Faiz Shakir called “an all-staff meeting, during which he recommended raising the pay for field organizers to $42,000 and changing the workweek specifications…”
If that description of events is accurate, that could be a potential violation of the National Labor Relations Act, as it infers that management [Shakir] was circumventing the union by “direct dealing” with employees.
Here is what the National Labor Relations Board states [in PDF]:
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.
4. Are Sanders’ own statements violating employees’ rights?
Following the kerfuffle that the Washington Post article reported on, Bernie Sanders reportedly commented that it was “really not acceptable” and that it was “improper” that “people are going out outside the process and going to the media.”
Here’s how it was reported in the Des Moines Register:
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.”
Prohibiting employees against talking to the press about their wages or working conditions could be found 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.
DISCLAIMER: The questions raised herein are questions that are based on a Washington Post article and dependent on the reporters’ statements in the article. Without a formal investigation, there can be no way of knowing if, in fact, the reporters’ statement are accurate, nor whether the Sanders’ campaign is in violation of the National Labor Relations Act or the Fair Labor Standards Act—nor should this be construed as an accusation of such.