PUNCHING IN: Acosta after Break, Griffin on Board, H-1B Season Starts

Punching In

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Acosta Vote Before Spring Break?| Shifting Sands at NLRB| DOL Dash to Mailbox

Ben Penn: For obvious reasons, the debate over Alex Acosta’s nomination for labor secretary is taking a definite back seat to discussion of Neil Gorsuch’s U.S. Supreme Court confirmation process. The question is whether Acosta will also have to wait in line behind Gorsuch in the Senate.

The HELP Committee moved Acosta one step closer to confirmation last week, advancing him in a party-line 12-11 vote. It now seems improbable that Senate Majority Leader Mitch McConnell (R-Ky.) can squeeze in a floor debate and vote on Acosta before Congress adjourns Friday for a two-week recess. 

The Senate is expected to vote on Gorsuch Friday, its last day before the break. Talk of a nuclear option to get the vacancy filled further complicates the process. 

Still, the fun will end soon for the career employees who’ve been enjoying these past 10 weeks at the Perkins Building without a boss. I’d advise them to make the next few weeks count before the Senate returns in late April. 

Do you think there’s any chance Acosta can get confirmed this week, and if yes, how many Dems will vote for him? Send us your thoughts at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Chris Opfer: This morning the D.C. Circuit takes up another appeal of an NLRB decision. This case concerns a 2016 ruling in which the NLRB said employers who violate federal labor law in firing workers are on the hook for the employees’ job search expenses, in addition to back pay. The case centers on a barista at a Starbucks inside a King Soopers grocery store who was fired after complaining about being ordered to bag groceries, a job covered by a separate bargaining contract. The oral arguments come less than a month after the D.C. Circuit heard arguments in the hot potato Browning-Ferris joint employer case.

Both cases are good examples of the sort of pendulum swing the NLRB critics often point to when they say the board has become too politicized. The King Soopers and Browning-Ferris decisions undid precedent from previous, more conservative versions of the board. One or both decisions may get another look from a Republican-majority board once President Donald Trump fills two open seats. 

“There could be a major shift in the personnel,” NLRB General Counsel Richard Griffin (D) recently told a group of lawyers in New York, referring to the board member openings and the general counsel’s spot, which he relinquishes when his term ends in November.

But much of the board’s work will remain the same no matter who’s pulling the strings, Griffin said. While all of the focus “tends to be on the 10 or 12 cases every couple years where precedent changes,” it shouldn’t be, he said. “Last year there were a little over 21,000 unfair labor practice charges filed. The regions dispose of the vast majority of the cases – both meritorious and non-meritorious – without any input from Washington.”

BP: Speaking of Washington, Acosta is already reviewing his future deputies, in the event he’s confirmed. We learned last week that the labor chief pick took part in a full day of interviews at the White House on March 23, with one familiar face emerging as a favorite to run the Wage and Hour Division. Acosta’s apparently put the word out that he wants to personally interview DOL attorney candidates.

It’s customary for a Cabinet nominee to play a role in interviewing top personnel at the agency before confirmation. This allows the potential chief to get on the same page as the White House Counsel’s Office so they can announce their intent to name a deputy secretary, solicitor and other key appointees very quickly after the swearing-in. 

We hear there’s another plausible reason for the would-be labor secretary to take such a keen interest in reviewing DOL attorney candidates. Acosta is said to have felt burned by the hiring process when he worked for the George W. Bush White House. An independent report in 2008 found that as head of the Justice Department’s Civil Rights Division, Acosta could have done more to prevent his subordinate’s politically motivated hiring of career lawyers. This go-round, the nominee appears to be making a concerted effort to prevent accusations that he’s asleep at the wheel.

CO: It’s safe to say that, unlike the money I spent getting into a March Madness pool, the immigration issue isn’t going away any time soon. Today is the first day that employers can petition for H-1B visas for highly skilled immigrant workers. As Bloomberg Law’s Laura Francis recently reminded me, the program is very competitive.

“The temporary visas for ‘specialty occupation’ workers typically run out in the first week, leading to a lottery to determine who gets one,’ Francis said. “Last year, the immigration agency received 236,000 petitions for the 85,000 slots available.”

The program has seen a whole lot of scrutiny in recent years, with reports of a wide range of employers – from Disney to Southern California Edison – wiping out swaths of their tech workforce and replacing it with temporary H-1B workers supplied by staffing firms. In some cases, workers have said they were even asked to train their replacements. That’s drawn the attention of a bipartisan group of lawmakers, including the rather unlikely combination of Sens. Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah) and Pat Leahy (D-Vt.), along with Reps. Darrell Issa (R-Calif.) and Zoe Lofgren (D-Calif.).

BP: Finally, I reported last week on management attorneys prepping for a return of their prized WHD opinion letters. The letters carry significant legal weight, and I’ll be closely monitoring this issue in the coming months. 

The article notes that in the final week before Obama’s inauguration, the WHD – in a mad rush to empty out the backlog of requests – signed 18 letters but never physically sent them to requesters via snail mail.  Even though they’re still published online with an asterisk, and might be reissued later this year, the WHD withdrew the letters because of this technicality.  

Well, it struck me as odd that over a dozen other opinion letters signed in the same date range (Jan. 14-16, 2009) are sans asterisk, making them legally binding. Why would the division elect to mail only some of those documents?

Turns out, the attorney who submitted those questions was fearful that the WHD might run out of time (to walk to the mailbox?) and that business clients would never get their answers in a new political administration. So the attorney, who requested anonymity, took control of the situation by sending a messenger to the Perkins Building to pick up the letters. Disaster averted!  

CO: On that note, we’re punching out. Daily Labor Report subscribers can check back in with us during the week. Jon Steingart is tracking a Seattle judge’s expected ruling in a lawsuit to try to shield Uber and Lyft from being forced to hand over driver info to the Teamsters. Tyrone Richardson is heading to two Hill hearings – one on federal funding for job training programs and the other on comp time for overtime legislation – in addition to watching the Acosta vote scheduling. Kevin McGowan will be checking in as the EEOC holds its first public meeting during the Trump administration. Happy Equal Pay Day (Tuesday).

See you back here next Monday morning.

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