Monday morning musings for workplace watchers
The Waiting is the Hardest Part | Case of the Hospital Pension Plans | Help Wanted at NLRB
Ben Penn: We barely heard a peep out of candidate Donald Trump on labor policies during campaign season, outside of his evolving take on the minimum wage. So I guess it should come as no surprise that as the second full week after the election commences, mum’s still the word on his labor agenda.
Sure, veteran business lobbyist Steve Hart is guiding the Trump labor transition effort and a few business-friendly names are being floated for Labor Department and National Labor Relations Board posts. We also know that the Donald met over the weekend with CKE Restaurants chief Andy Puzder to talk at least in part about the state of the laws governing the American workforce. But it appears labor isn’t on the front burner in terms of staffing, and in fact the only agency landing teams announced thus far are for the sexier departments – State, Justice and Defense – and the National Security Council.
So with nothing firm to report, Chris and I can follow Congress’s lead and start the Thanksgiving holiday early, right? Wait a sec, I’m now hearing that the public demands we pull out the tarot cards and take a look into our Crystal Ball. All right then, here we go.
Chris Opfer: We’ll be watching the courts again this week with a likely decision out of Texas in the case challenging the new overtime rule.
Bloomberg Law’s Jacklyn Wille says the Supreme Court could possibly decide Tuesday whether to consider a trio of cases involving hospital pension plans that could directly affect thousands of health care workers across the country. The employees say that church-affiliated hospitals have underfunded their pension plans to the tune of billions of dollars. The hospitals counter that they’re exempted from federal law under a safe harbor for church plans. Wille tells us the high court’s decision to halt a Ninth Circuit ruling in favor of the workers has some thinking the justices are getting ready to weigh in.
Meanwhile, Bloomberg Law’s Lawrence Dube is keeping an eye out for cert petitions due this week in a couple of cases challenging whether employers can require workers to sign class action waivers. Two of those cases involve 24 Hour Fitness USA. Workers claim the exercise chain unlawfully interfered with their right to collectively organize by requiring them to sign the waivers, even though limited opt-out provisions were included.
BP: Last week I declared that Trump’s Labor Department behavior could be a barometer for how his administration balances the GOP establishment with the working-class wing that got him elected. There haven’t been any big revelations in the past week about his labor agenda, but let’s examine two agencies within DOL that I’ll be monitoring closely in the coming months for indicators:
Employment and Training Administration: The ETA gets billions in annual funding that’s fed into state and local job training programs, such as registered apprenticeships and Job Corps centers. The agency’s initiatives aren’t typically politically polarizing and receive more bipartisan support than say, the Wage and Hour Division. If Trump wants to deliver on his campaign promise to put America back to work again, then retraining many of the laid-off factory workers for jobs of the future could be a part of that plan.
Office of Labor-Management Standards: OLMS's priorities tend to flip-flop depending on who lives in the White House. Under Presidents Obama and Clinton, the agency’s budget was slashed for investigating union officer embezzlement and monitoring union representation elections. If the new labor secretary were to restore OLMS’s enforcement capacity to its level under George W. Bush, then an already weakened labor movement would face extra government scrutiny. It’s too soon to assume that Trump’s OLMS will follow the traditional GOP path. But it’s also worth noting that Trump does have a history of partnering with some unions in the construction industry, although he has a more rancorous relationship with other unions like UNITE HERE. If he wants to boost OLMS’s power, the president-to-be will have a Congress likely willing to comply.
CO: Now that lawmakers seem to have found a way to keep Uncle Sam open for business into the new year, it’s safe to say we’ll get a much clearer idea of Trump’s priorities shortly after the ball drops in Times Square. The White House is expected to get to work early with Congress on appropriations legislation to fund the DOL and other government agencies. Will Trump break the piggy bank to staff up at OLMS? The more likely scenario is that he takes the cash from elsewhere (we’re looking at you, Wage and Hour Division).
A spring appropriations battle—Congress is working on a funding patch to last through March—will be an early test for Senate Democrats as one of the last lines of defense against GOP moves to undo the Obama labor legacy. Chamber rules require 60 votes to pass legislation. Republicans will only have 51 or 52 seats, depending on what happens in the Louisiana Senate race. That means Democrats can hold up any funding bill that’s loaded with policy riders like those we’ve seen previously floated to stop the overtime rule and undo the NLRB’s expanded joint employer liability standard. GOP lawmakers are likely to try to bridge the gap by making nice with Democrats from red states who are up for re-election in 2018.
BP: On the overtime rule front, a federal judge in Texas anticipates a Tuesday ruling on whether to grant or deny a motion to block the regulation from taking effect Dec. 1. If he denies, Judge Amos Mazzant will hold another hearing Nov. 28 on the U.S. Chamber of Commerce’s request for summary judgment and likely offer a speedy turnaround on that so that employers will know whether they actually must comply a few days later.
In case you missed it, I spoke with WHD Administrator David Weil last week about what to expect in the rule’s early enforcement period.
CO: We’re also starting to hear some chatter about who might get a look for the two open board member spots at the NLRB. Some of that talk appears to be coming from the candidates themselves. What we know is that Team Trump will have one Dick Griffin on its hands for most of the next year. The NLRB general counsel, who’s been something of a thorn in the side of the employer community, is expected to see out his term until November 2017. In the meantime, it’s safe to say Griffin will continue to advocate for widened joint employer liability and to challenge class action waivers.
That got us thinking: Which one is the better gig? Yes, board members actually decide cases, but Griffin has shown that the general counsel can play a strong role in shaping the NLRB’s agenda.
The general counsel role comes with “a lot more discretion and power,” former board member Wilma Liebman recently told me. Liebman also noted, however, that the GC is tasked with various administrative and personnel tasks that not all lawyers are keen on performing.
Well, we’re going to use our considerable discretion and power to punch out now. Daily Labor Report subscribers can check in with us during the week. Look for our colleague Genevieve Douglas’ story on Uber’s pushback against blanket employee screening requirements and the cost of bad hires for all employers. Bloomberg Law’s Patrick Dorrian also has an upcoming piece on managing intergenerational workforces. Martin Berman-Gorvine will be reporting on alternatives to the dreaded annual employee performance review.
See you back here next Monday morning.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
Notify me when updates are available (No standing order will be created).
Put me on standing order
Notify me when new releases are available (no standing order will be created)