PUNCHING IN: BFI Decision Brewing, More on Nomination Front


Monday morning musings for workplace watchersDOL771 

By Chris Opfer and Ben Penn

Browning-Ferris on the Way? | More Leadership Moves | Acosta Back on Hill

Chris Opfer: Is this the week we hear from the D.C. Circuit in Browning-Ferris? Bloomberg Law’s Lawrence Dube told me the appeals court has already issued decisions in some of the other cases it heard arguments on back in early March. But just when and how the court weighs in on the NLRB’s controversial move to expand joint employer liability remain to be seen. What we do know is that lawyers, policy makers, politicians, and the rest of the labor and employment world will be watching. The decision will affect workers and businesses in a wide range of industries that relay on staffing, franchise, and other contract arrangements.

At issue is a 2015 NLRB decision in which the Democrat-majority board said a business can be considered a joint employer of another business’s workers -- for liability purposes under the National Labor Relations Act -- even if it exerts only indirect control over those workers. The D.C. Circuit is likely to do one of three things with that decision. It could find that the board’s interpretation of the law is the right one or it could say the interpretation is simply one of many permissible readings of the law. Option Three, which business groups are rooting for, is shooting down the board’s decision as an impermissible interpretation of the law. 

If Browning-Ferris loses, the company is as likely to seek Supreme Court review as my pal Eli Manning is to throw at least four interceptions in a single game next season. In other words, it’s going to happen. What’s not clear is how Uncle Sam responds if the appeals court strikes down the NLRB’s decision. 

Acting Solicitor General Jeff Wall has already shown he’s willing to switch the government’s position in high-profile labor cases. The Justice Department in a case before the Supreme Court recently abandoned its Obama-era position that employers can’t force workers to sign agreements waiving their rights to class action lawsuits. 

Will the DOJ do the same dance in the joint employer debate? Contact us at copfer@bna.com and bpenn@bna.com or on Twitter: @BenjaminPenn and @ChrisOpfer.

Ben Penn: Slowly but surely, the pace of appointments at labor and employment agencies is starting to pick up. Last week, the White House tapped key personnel at the Labor Department, NLRB, and National Mediation Board. Are the floodgates now truly opened? This week may provide more answers.

At DOL, I’m keeping my eye on whether acting Solicitor Nick Geale gets called up on a permanent basis to the department’s chief legal post and #3 overall job. And maybe the next nominations in the queue after solicitor will be Cheryl Stanton and Scott Mugno to run the Wage and Hour Division and Occupational Safety and Health Administration, respectively. The Employee Benefits Security Administration sure could use a confirmed head honcho, too. 

The point person shepherding the nominations along for swift Senate consideration, the GOP labor policy director, Kyle Fortson, may be a bit distracted now. That’s because Trump nominated Fortson as an NMB member. The same Senate committee’s labor counsel, Molly Conway, left a few months earlier to join DOL, where the last we heard she was Secretary Alex Acosta’s deputy chief of staff. 

The musical chairs around Washington has me curious about who’s minding the labor shop on a Senate HELP (Health, Education, Labor and Pensions) committee that is understandably preoccupied with the H portion of that acronym during the contentious health-care bill process.

Regardless, the personnel vacuums atop these agencies will likely continue at least until the Senate returns from a summer recess after Labor Day. 

CO: Speaking of leadership shuffling, I might have gotten a little ahead of myself when I said EEOC Commissioner Jenny Yang (D) was headed for an early vacation come July. Although her appointment expires on Saturday, “Yang can stay on after her expiration date for 60 days, until a successor is nominated and approved, or the Senate adjourns sine die, whichever happens first,” Bloomberg Law’s Kevin McGowan recently explained to me.

We’re also wondering whether the White House will make Acting EEOC Chair Vicky Lipnic (R) permanent. Kevin says business groups have been telling him they would be happy to see Lipnic stay on. But we also heard from one prominent management attorney that the White House might want someone who’s a bit more of a hardliner in terms of Republican policy.

BP: Secretary Acosta heads to the Senate tomorrow morning at 10:30 to testify in defense of his department’s budget request. At his House budget hearing earlier this month, Acosta was pressed on his wage-and-hour enforcement approach and promised it would be vigorous and he would seek to take on high-impact cases by going after the worst actors. 

That doesn’t preclude DOL from adopting a more cooperative attitude toward employers, including those that violate minimum wage and overtime laws without willfulness. I’m hearing speculation that the Wage and Hour Division is in the process of officially restoring a Bush-era practice of issuing opinion letters that respond to stakeholders’ specific questions about gray areas of the law. Yes, unions can submit them, too, but this is a program that historically has benefited management the most.

A Bush-administration WHD official, speaking at a conference last week, shared with attendees that the department will be establishing a formal process soon that allows employers and others to request opinion letters. These letters were coveted by management attorneys in the last GOP administration as valuable compliance tools, and to be used as a defense in private litigation. But Obama officials viewed the letters as get-out-of-jail-free cards for employers and a drain on resources. We knew the agency was likely to revive this practice eventually, but if it happened imminently, without a new WHD administrator on board, that would be noteworthy. 

CO: We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. The Center for American Progress is out today with a report on bills pending in Congress that the liberal-leaning group says will make it tougher for workers to unionize. I’ll have some more info for subscribers today on an interesting new development in the joint employer debate.

See you back here next Monday morning.

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