Democratic Presidential Campaigns as "Employers"

Speaking at the Iowa Federation of Labor’s annual convention in mid-August, 2019, AFL-CIO President Richard Trumka, told Democratic presidential candidates who have been working the state, “If you want our endorsement … show us that you’re unambiguously pro-worker and pro-union.”

A few weeks earlier, on August 6, 2019, the International Brotherhood of Teamsters issued a press release announcing that the national presidential campaign staff of Sen. Cory Booker had chosen Teamsters Des Moines Local 238 to represent them. The press release was cryptic in stating, “Sen. Booker’s campaign staff decided to organize with the Teamsters after holding a card-check vote.” Usually it is the employer which determines to forgo a vote and recognize the union without an election based on a review of authorization cards.

Presidential candidate / Senator Bernie Sanders’ campaign is reported to have unionized in March of 2019, with the workers being represented by UFCW Local 400 (the geographic territory of which encompasses Maryland, Virginia, Washington, D.C., West Virginia, Ohio, Kentucky and Tennessee). Staffers with Democratic presidential candidate Julián Castro’s 2020 campaign reportedly “unanimously” signed cards authorizing representation by the Campaign Workers Guild, and Castro’s campaign announced in early May 2019 that it was recognizing  the union. In late May 2019, Local 2320 of the International Brotherhood of Electrical Workers –based in Manchester, New Hampshire -- announced that it had obtained authorization cards from a majority of Presidential candidate / Senator Elizabeth Warren’s campaign staffers; on June 3, 2019, Senator Warren’s presidential campaign announced that it had voluntarily recognized IBEW Local 2320 and was commencing negotiations.

Presidential campaigns, welcome to the world of “employers!”

On July 18, 2019, The Washington Post had an article entitled, “Labor fight roils Bernie Sanders campaign, as workers demand the $15 hourly pay the candidate has proposed for employees nationwide.” The Post article stated that the newspaper had obtained emails, instant messages and “other documents” regarding the negotiations between the union representing Sander’s campaign staffers and Sanders’ national presidential campaign manager Faiz Shakir, The Post stated that the documents it reviewed, “show that the conflict dates back to at least May and remains unresolved” as of the July article. UFCW Local 400 reportedly told The Post that is “could not comment” “on specific, ongoing internal processes between our members and their employer.”  Of course, said he with his tongue in his cheek, no union ever comments publicly about the ongoing status of negotiations. Can you imagine the ramifications if the staff of a Democratic presidential candidate – if the staff of the nominee of the Democratic Party for president – went out on strike?

On Monday, July 22, 2019, the National Labor Relations Board formally “filed” an unfair labor practices charge that had been electronically signed by an individual complainant on the preceding Friday, July 19, 2019. The complaint – a redacted copy which is available here – was lodged against the employer, “Bernie Sanders for President 2020,” 401 SW 8th Street Suite 423, Des Moines, Iowa  50309. The matter has been assigned for investigation to NLRB Region 25, headquartered in Indianapolis. (Des Moines’ NLRB resident office of the Board’s Minneapolis Region 18 was closed in 2015.)

The unfair labor practices complaint was not filed by a union, but rather by an individual – whose name and other personally-identifying information is redacted under FOIA exemptions (b)(6) and (b)(7)(C) [both related to unwarranted invasion of personal privacy]. The NLRB’s docket page for Case Number 25-CA-245250, Bernie Sanders for President 2020, lists a number of allegations, including an illegal discharge and illegal interrogation of employees. Perhaps indicative of how the “union negotiations” were going, the original charge included allegations that the campaign had made unilateral changes in terms and conditions of employment, had made unilateral promises to employees regarding mandatory subjects of bargaining, and had unlawfully interrogated employees. 

The Hill reported that the day following the filing of the unfair labor practice charge,  there was a resolution of the ongoing dispute between Sanders’ staffers and his campaign regarding the campaign’s “guarantee” of salaries equivalent to $15.00 per hour. The staffers had contended that because of long hours of work, when the salary was divided by hours worked, they got less than $15.00 per hour. Specifically, The Hill reported that “field organizers accepted an offer from the Sanders campaign to boost salaries to the equivalent of at least $15 an hour.”

That reported agreement, of course, does not change any of the allegations of the unfair labor practice charge filed against the campaign with the NLRB. Indeed, according to the NLRB’s docket page, an amended charge – as of this writing, not yet redacted such that it is publicly available on the web site – was filed on August 28, 2019.

This long-time employer-side labor attorney offers some observations to these now potentially high-visibility employers:

1. Under the federal Fair Labor Standards Act, employers generally are required to pay covered employees one and one-half times the employee’s regular hourly wage rate for all hours worked in excess of 40 in any work week. The FLSA exempts from overtime requirements “any employee employed in a bona fide executive, administrative, or professional capacity.” The U.S. Department of Labor – charged by law with interpreting this exemption – has since the 1940s included in its regulations prescribing which employees fall within these exemptions both a “salary-level” test and a duties test. Merely paying employees on a salary basis does not mean those employees are not entitled to overtime pay. One must also meet a fundamental “duties” test. I have some trouble believing that every person who works for a presidential campaign is in a position which would meet the current duties tests for “executive, administrative or professional” employees. 

2. It was instructive to read that apparently some of Candidate Sanders’ staffers were dividing their salary by the number of hours worked. 29 CFR § 778.114 explains how to calculate a regular rate when a non-exempt employee works hours that fluctuate unpredictably on a weekly basis, and is compensated a fixed salary with a clear understanding that the salary is intended to cover all the hours worked that week. Under the regulation, that “understanding” must be that the salary can only cover “straight time pay.” The individual is still entitled to the “one-half times the regular rate” for hours worked in excess of 40. The regular straight time rate is computed by dividing the “salary” by the total number of hours worked during the workweek. If that number is less than the established minimum wage, the employer must pay an additional amount to bring the pay up to the minimum wage. Regardless, the employer owes the employee “one-half” of the computed regular rate times the number of hours worked that week in excess of 40.

3. No employee subject to the FLSA, no matter how committed he or she may be to an employer or cause, may waive the right to be paid “basic minimum wage and overtime wages under the Act.” Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707, (1945). The FLSA requires an employer to “make, keep, and preserve...records of the persons employed by him and of the wages, hours, and other conditions and practices of employment.” Where it fails to do so, an employee suing for unpaid wages will not be penalized for an inability to prove the actual time worked. Rather, the employee may prove work was in fact performed for which she or he was not compensated, and “if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”  Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946); Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1042 (2016)

4. During the Obama presidency, the USDOL adopted a rule (which was subsequently voided by federal courts) which increased to $913 per week the threshold wage one must be paid to be exempt from the overtime requirements of the FLSA. Dividing that by $15.00, one gets 60.87 hours. On March 7, 2019, the USDOL announced a proposed rule which would increase the minimum salary threshold to qualify for exemption from the overtime provisions of the FLSA to $679 per week. While the rule has not, as of this writing, been finally adopted, Democratic presidential candidates’ campaigns may wish to reflect on the salaries paid to their clearly-exempt staff and how many hours those individuals work per week for that salary. A campaign may also wish to have a study done to make sure that individuals are properly classified under the FLSA. What the candidate does as an employer is clearly subject to being contrasted with what the candidate says.

Again, Trumka was blunt:  “[S]how us that you’re unambiguously pro-worker and pro-union.”