Monday morning musings for workplace watchers
Budget Week | Paid Leave Positioning | Acosta Positivity
Ben Penn: Welcome to budget week, the time of year when I tap into vague memories of high school math (shoutout to Mr. Roth) and dive deep into the numbers. This year’s figures, following up on March’s “skinny budget,” will reflect how the Trump White House intends to follow through on promises to improve Americans’ job opportunities.
The official proposal is expected Tuesday, but a leaked version published by the center-left think tank Third Way Thursday night, if accurate, offers us a tease.
Jay-Anne Casuga , Punching In’s resident guru of all things Office of Federal Contract Compliance Programs, gives us her initial reaction to Trump’s potential request for the contractor watchdog agency:
“OFCCP may be looking at an $88 million proposed budget. That’s about a 17 percent cut from current funding levels. This could mean district office closures and workforce reductions, former agency officials previously told Bloomberg BNA. It could also mean a return to a tiered-audit process used in the Clinton and Bush administration, as opposed to the deep-dive approach of the Obama administration.”
But other enforcement agencies that I was expecting to get a haircut, like the Wage and Hour Division, would actually see a slight bump if the White House gets its way, according to the unverified document. The leaked budget calls for appropriating $230 million to the WHD in FY 2018, up from $228 million in FY 2017. That is down, however, from the $277 million Obama last requested. The number of WHD investigators traditionally drops in Republican administrations, but perhaps this means overtime and minimum wage enforcement capacity will remain at Obama levels. One thing is for certain, David Weil strategies from the Obama era will certainly get a strong reconsideration.
I’ll also be keeping a close watch on what Trump does with the Office of Labor-Management Standards, another one of those subagencies where priorities flip-flop depending on who’s in the White House. If the Third Way-published spreadsheet is any indication, OLMS – which handles enforcement of union officer corruption – would see a 22 percent increase from FY 2017 to a proposed $46.6 million in FY 2018. That’s a substantial boost, but it’s far too early to tell whether it would be enough to revive the Bush administration agenda of using the office to audit large international unions.
Chris Opfer: The budget is also expected to include a proposal to provide six weeks of paid paternity and maternity leave for private sector workers. I reported last week on a separate Republican plan to secure paid leave. If nothing else, the folks involved in the bill we'll see in the next few weeks deserve points for creativity. The measure does businesses a solid by allowing them to choose whether to opt into a national program, requiring employers to provide a certain amount of paid sick and family (maternity and paternity) leave depending on size. It also gives them an incentive to opt in by shielding participating employers from state and local leave laws.
“We have had frequent conversations with our members about paid sick leave laws,” Will Hansen, a business-side benefits policy advocate for the ERISA Industry Committee, recently told me. “Federal preemption has been the number one request.”
Meanwhile, the bill is already getting some heat from at least one Democrat. Sen. Kirsten Gillibrand (N.Y.) told me the legislation is a "total non-starter." Gillibrand, who has been a vocal advocate for paid leave legislation, is pushing her own bill. That measure would require workers and employers nationwide to chip into a paid leave fund used to cover up to 12 weeks of family leave.
“A national paid leave program can only sustain itself if every worker in the entire country is part of it,” Gillibrand said at a Center for American Progress event last week. “And if it’s going to survive, then everyone that would benefit should chip in.”
The House Republicans and business lobbyists working on the GOP legislation probably aren't counting on Gillibrand's vote. Can they convince enough of her Senate Democratic colleagues to cross the aisle?
BP: Labor Secretary Alex Acosta’s first month at the department is nearing a close and we’re still waiting for him to show his hand. Acosta’s former boss at Kirkland & Ellis, John Irving, told me last month that his one-time associate is a “very cautious” attorney who “won’t start moving the furniture around” on day one. Irving wasn’t kidding.
Acosta’s first extensive public remarks, at the G-20 in Germany last week, focused on apprenticeship and narrowing the skills gap. Those are relatively safe topics for a neophyte labor secretary speaking before international labor and employment ministers at a meeting on global workplace challenges.
Not to dismiss the importance of apprenticeships, but we’ve yet to hear Acosta discuss his views on cutting back Obama labor regulations. Make no mistake about it, Senate labor committee Chairman Lamar Alexander (R-Tenn.) shepherded Acosta through confirmation this spring on the belief that the high-level attorney would get to work undoing the Tom Perez regulatory agenda. The business community is already urging Acosta in one-on-one talks to relieve employers of DOL-produced burdens.
Navigating the administrative law components of that process on the overtime, fiduciary and other rules takes time, not to mention Senate-confirmed personnel. So for now, the public messaging from this labor secretary is adhering to less controversial, positive topics. Let’s see how long that lasts.
CO: Google and the Labor Department are set to go back in front of an administrative law judge on Friday. The tech giant is fighting an expansive DOL request for pay and other data as part of an OFCCP audit. Plenty of other businesses that do work with the government are hoping the judge draws a line in the sand in terms of just how much info the Feds can demand. The Labor Department defended itself last month by dropping a bombshell: The DOL says it already has evidence of widespread pay disparity at Google and needs the additional data to try to uncover what's causing women to be paid less.
That's not the only legal wrangling going on between Google and Uncle Sam. Bloomberg Law reporter Hassan Kanu is keeping an eye on an NLRB unfair labor practice charge challenging the company’s social media and confidentiality policies. He’ll have more on that later this week.
In other tech industry news, the Senate Judiciary Committee on Wednesday will consider Francis Cissna’s nomination for U.S. Citizenship and Immigration Services director. “The hearing will be lawmakers’ first chance to gauge whether Cissna, a career Department of Homeland Security official, has any big plans for the legal immigration system, including employment-based visa programs,” Bloomberg Law’s Laura Francis tells us.
Cissna is likely to field some questions on the H-1B visa program for highly skilled workers in tech and other trades. Lawmakers on both sides of the aisle have criticized that program for allegedly allowing companies like Disney and Southern California Edison to replace sections of their workforces with temporary H-1B workers supplied by staffing firms.
The good news for those who’d like to see some changes to H-1B is that Cissna helped draft bipartisan legislation to overhaul the program during a detail to the office of Judiciary Chairman Chuck Grassley (R-Iowa) office. The bad news? That bill never got a vote.
BP: We’re punching out. Daily Labor Report subscribers can check back in with us throughout the week. Patrick Dorrian has a pair of stories on hiring bias and whether employers may want to rethink their practices in response to new laws and an uptick in EEOC enforcement. Martin Berman-Gorvine is looking into a separate and interesting (although not necessarily legal) question about discrimination in recruitment: Is it easier to get hired if you’re good looking?
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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)