PUNCHING IN: Big Week in Congress for Trump Labor Picks


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Pizzella-Kaplan-Emanuel Hearing | Apple, Amazon Bag Searches | Joint Employer Bill 

Chris Opfer: Congress is coming back from the Fourth of July break with a bang. Senate lawmakers will take up three Trump administration nominations on Thursday: Patrick Pizzella for deputy labor secretary and Marvin Kaplan and Bill Emanuel to join the National Labor Relations Board. That means the full chamber may vote on the nominations in the 15 or so legislative days before the August recess.

The Pizzella piece will probably be the most interesting part of the hearing. Bloomberg Law’s Hassan Kanu reported last month that the acting Federal Labor Relations Authority chief started his career working for disgraced lobbyist Jack Abramoff.

To be clear, Pizzella was never charged with a crime and there’s no evidence that he was suspected of any wrongdoing as part of an investigation that resulted in Abramoff pleading guilty to fraud, tax evasion, and conspiracy to bribe public officials. But Pizzella can expect to catch some shade from Democrats for lobbying Congress with Abramoff to shield Mariana Islands employers from federal labor, workplace safety, and immigration laws. That’s probably something that Patty Murray, Elizabeth Warren, and others will want to chat about when Pizzella goes before the panel.

This will be the first time we see a substantive labor policy discussion in the Senate since Labor Secretary Alex Acosta hit an appropriations subcommittee meeting to talk about the Trump DOL budget request. Anything in particular you’d like to hear the committee cover? Let us know at copfer@bna.com and bpenn@bna.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

The Kaplan-Emanuel portion of the hearing will probably feature fewer fireworks. Lawmakers on both sides of the aisle will want to know how the nominees feel about various big-ticket labor law questions, including those related to joint employer liability, micro unions, college campus organizing, and employee handbooks. Kaplan and Emanuel will try not to make any waves. Those will come later, likely, when the board has its first Republican majority in nearly a decade.

Ben is wrapping up a much-deserved California vacation, probably on a beach somewhere enjoying a couple of Ballast Points or Stone IPAs. The good news is he’ll be back in town for the Pizzella hearing. In the meantime, we’re going to the bullpen to bring in friend of the column Jon Steingart for some info on an interesting Silicon Valley legal battle.

Jon Steingart: Apple Inc. is headed to the Ninth Circuit Tuesday as retail store employees argue that they should be paid for time they spend going through anti-theft bag searches at the end of their shifts. Supreme Court watchers may recall a similar case involving pickers at an Amazon.com warehouse a few years ago. In ruling for Amazon, the justices explained that under federal law workers only need to be paid for an activity that is so “integral and indispensable” to the task they’re hired to perform that they can’t do one without doing the other.

But Apple – as it says on the back of my iPhone – is a California company, and the retail employees are suing under state law. The Ninth Circuit may find that the state law definition of compensable time is different from federal laws. The appeals court could also punt and ask the California Supreme Court for guidance before deciding the case.

CO: Meanwhile back at the Labor Department, Bloomberg Law’s Jay-Anne Casuga has some intel on what’s going on over at the (EEOC bound?) Office of Federal Contract Compliance Programs. Jay-Anne tells me she’s hearing that former Senate HELP Committee lawyer Molly Conway has withdrawn her name from consideration for the OFCCP’s top post. Jay-Anne says Booz Allen attorney Paul Kehoe is apparently back at the top of the list of candidates to run the federal contractor watchdog.

One day before Kaplan and Emanuel get their chance to weigh on the joint employer debate, lawmakers on the House Education and the Workforce Committee Wednesday will also take up the issue. The Wednesday hearing means we should soon see a group of mostly Republican House lawmakers introduce legislation to clarify the circumstances under which businesses in staffing, franchise, and other contractual relationships may be liable as joint employers of another business’s workers. What we don’t know is whether the measure will simply look to undo the NLRB’s 2015 Browning-Ferris decision or also update the joint employer standard for federal wage and hour and workplace safety laws.

We mentioned a few weeks back that an appeals court in Washington could decide a challenge to the Browning-Ferris ruling sometime soon. That’s because the court has already issued decisions in several other cases that it heard oral arguments on around the same time. Industry folks who are closely watching the case and some labor union insiders have since told us that the smart money is on a decision coming sometime in late August or early September.

Anyone want to wager whether Kaplan and Emanuel will have joined the board by then?

We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. 

See you back here next Monday morning.

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