Punching In: Confirmation Process Picks Up Steam

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By Chris Opfer and Ben Penn

Monday morning musings for workplace watchers

If the Ring Fits |Pat’s Patience Pays Off | Small Fries

Chris Opfer: We’re a little more than a week into April and the Washington Nationals are already comfortably in the middle of their division. If you’re a Nats fan like me, springtime brings the sense of pending dread that the fellas with the curly W’s on their hats will find new and interesting ways to blow it when the playoffs come around.

Here’s another thing to look forward to when (if?) the weather starts to warm in D.C.: Congress isn’t likely to get a whole lot done the rest of the year. Tyrone Richardson is welcoming lawmakers back from Spring Break with a look at what’s ahead on the Hill. In short, we expect the focus to remain on moving Trump administration nominees through the Senate confirmation process, while putting off any heavy lifting on the legislative front until after the November elections.

The confirmation work starts back up this week with the Senate set to vote on John Ring (R) for the NLRB’s all-important fifth seat. Ring is expected to be confirmed on a party-line basis. He would give Republicans control of the five-member board, setting the stage for a GOP rollback of various decisions from the Obama era.

The widely anticipated pendulum swing to the right on labor policy may not necessarily be a smooth one. We’re still not clear about the full extent of the fallout from ethics violations by Member Bill Emanuel (R). Ring, who has represented a wide range of businesses as an attorney for Morgan Lewis, has already pledged to recuse himself for two years from cases that he personally worked on and those involving the firm. What we don’t know is whether Ring will be asked to sit out other cases involving former clients—like Boeing, Amazon, Microsoft, and J.P Morgan Chase—represented by other firms, as some have suggested Emanuel should do. It also remains to be seen if Democrats will keep pushing the broad “issue preclusion” some have argued prevents Emanuel from participating in any case involving the joint employment question.

Even some conservatives are concerned that conflicts and recusals could slow the NLRB train from Obama Junction to Trump Town. Bloomberg’s Josh Eidelson recently flagged a February newsletter post from the National Right to Work Committee. Here’s an interesting snippet:

“While the White House was considering whom to nominate to fill the NLRB vacancy, Committee officers counseled Trump staff members not to choose for the slot another management attorney who would have to recuse himself or herself potentially from vast numbers of cases involving clients of the attorney’s former employer,” the committee wrote.

“This advice went unheeded.”

The Senate is slated to start the process of voting on Ring’s nomination tomorrow and should finish up before the end of the week.

Meanwhile, the D.C. Circuit has decided to take back the Browning-Ferris case that generated some of the Emanuel ethics questions.

Ben Penn: Chris, there’s always a seat for you 35 miles up the Baltimore-Washington Parkway on the Orioles bandwagon, where my Birds promise to keep expectations low all season.

The 162-game slog is underway just in time for another saga to presumably be put to rest this week: Pat Pizzella’s status as a Labor Department nominee-in-waiting. Nearly 10 months since Trump first picked Pizzella for deputy labor secretary, Mitch McConnell is finally doing a solid for his wife Elaine Chao’s one-time DOL enforcer by calling Pizzella’s name for a vote.

If all goes as expected, Pizzella will be confirmed as the DOL’s No. 2 by week’s end, and his homecoming to the Frances Perkins Building can commence. Whether that’s welcomed or discomforting news is a matter of perspective.

For starters, the Senate Democrats will surely be using some of the 30 hours of floor debate to remind folks of Pat’s connections to Jack Abramoff. That’s likely even though the Democratic champion on this issue during Pizzella’s confirmation hearing last year, Al Franken, obviously won’t be around this week for a reprisal.

The GOP majority should still deliver Labor Secretary Alex Acosta and his chief of staff/utility player Nick Geale a major favor by approving Pizzella for a role that functions as the department’s chief operations officer. What this means in practice is that some of the lingering policy decisions that we’ve been anticipating for 15 months of the Trump administration may start to trickle out.

The vote on Ring will still be the topline labor confirmation news this week, but the business community is also eager for Pizzella to get to the depsec’s office. Advocates are expecting a hard-charging agenda. That’s especially the case for the employer representatives who’ve been impatiently waiting for rapid action on wage-hour or occupational safety issues.

Pizzella’s return also has potentially wide-ranging implications for the upcoming FY 2019 budget negotiations, personnel realignments, tweaks to subagency mission language, new guidelines, district office closures, etc. All of those big decisions typically would run through his office, a former Obama DOL official told me.

While Pizzella may have some scores to settle, Chao now has a different seat on the Cabinet and won’t be his boss anymore. Acosta is no shrinking violet.

Pat will need to adjust his leadership style to comport with a risk-averse, legally-minded labor secretary. Acosta may be disinclined to approve contentious bureaucratic shakeups that would draw him negative headlines and upset the entire civil service.

Regardless, the Senate is about to confirm Pizzella for what sources close to him say is his dream job. So Punching In offers him a preemptive congrats. Looking forward to covering the next chapter.

CO: When news of the proposed settlement in the McDonald’s joint employment case broke last week, some folks might have assumed we accidentally dropped a zero from the $170,000 that Mickey D’s is offering a group of workers to resolve their unfair labor practice complaints. Surely, the chance to resolve one of the biggest cases in the labor and employment space without risking a ruling that McDonald’s is a joint employer with its franchisees of franchise restaurant workers could fetch a bigger price tag?

“It sounds like they’re getting off awfully cheap,” former NLRB member Sharon Block (D) told me of the settlement.

In fact, McDonald’s may wind up resolving the case without paying anything to the 19 or so workers who said they were retaliated against for participating in Fight for $15 demonstrations. The settlement agreement requires golden arches franchisees to pick up the tab. McDonald’s is pledging to chip $250,000 into a separate fund, available in the event that a franchisee doesn’t pay up. But Ronald, Grimace and the rest of the gang get whatever is left of that cash back in nine months.

Some will be quick to blame the NLRB attorneys handling the case for not squeezing more money out of McDonald’s. Here’s why their hands were tied, at least on the total dollar amount front: The National Labor Relations Act provides for equitable remedies only. That means back pay, interest, taxes, and front pay for fired workers who don’t return to their jobs. The federal labor law doesn’t provide for punitive remedies, like the additional damages available in federal wage and hour cases.

Rep. Keith Ellison (D-Min.) is among those who have called for Congress to revise the law to give workers a private right of action, which would allow them to sue companies like McDonald’s for labor violations in federal court. But even a private lawsuit wouldn’t give the McDonald’s workers the leverage to seek a much bigger payout, unless lawmakers also revise the available remedies.

BP: The first week back from recess reliably has us bouncing all over the nation’s capital. Here are some quick thoughts on what else we’re watching in Washington:

EEOC general counsel confirmation hearing: The White House threw the Littler Mendelsons and Morgan Lewises of the world for a loop last month with its choice of Sharon Gustafson as the government’s top employment discrimination litigator. Gustafson, who brings a background defending both employees and businesses, testifies Tuesday at 2:30 before the Senate Health, Education, Labor and Pensions Committee.

She’ll have the stage all to herself. If more than a few committee members show up, expect some thorough probing into Gustafson’s background, vision for the EEOC, and of course, her views on LGBT discrimination. This isn’t your typical Trump labor and employment pick, which sets up an odd hearing that could actually feature Senators from both sides of the aisle asking tough, critical questions.

Learn more here about Gustafson from Jacquie Lee, and check in with Jacquie for her coverage of the hearing.

Kumbaya at DOL: On Wednesday, the same HELP committee will be marking up a bill to give the DOL grants to support job training and treatment services addressing the opioid crisis. Secretary Acosta will be pleased to see legislation moving that checks off several boxes for him. The bill has bipartisan support, including from top committee Democrat Patty Murray; it would fulfill a White House initiative; and it would give the department the chance to accomplish something that leverages the DOL’s mission to improve workers’ lives.

Interestingly, Acosta’s team put out a press release last week on another relatively neutral issue that can help forge solid rapport with stakeholders on both sides of the aisle. The announcement of $82.5 million in DOL grants supporting prisoner reentry programs is touted as part of President Trump’s commitment to reducing recidivism. This comes amid a Jared Kushner initiative to reform the prison system, placing the administration messaging at odds with Jeff Sessions and DOJ.

Conveniently absent from that press release was the information that DOL already was authorized under the 2014 Workforce Innovation Opportunity Act to offer these grants. The department annually awarded the grants for several years, dating back to the Obama administration.

Acosta Returns to Hill: On Thursday morning, Secretary Acosta will defend the DOL’s FY 2019 budget request at a Senate appropriations subcommittee hearing. The drama that derailed portions of his last budget hearing last month on the House side is now mostly a non-issue, so the discussion could be more focused on how and why the DOL wishes to carry out the White House proposal for a 9 percent funding cut.

Association Health Plans Fast-Tracked: If we listen to the words of Trump’s ousted HHS Secretary Tom Price, this high-profile DOL regulation to expand association health plans will be finalized imminently, or “in the coming weeks,” as he writes in an April 4 USA Today op-ed.

As a private citizen, Price doesn’t appear to be as plugged into the administration as he once was. I caught up with him Friday, and Price said he has no idea when the rule will actually be published. I wouldn’t count on the DOL releasing such a significant rule within the next month. The public comment period on the proposed version only closed five weeks ago, and a draft final rule hasn’t even been sent to the White House regulatory clearinghouse house for review. Then again, maybe that step doesn’t matter anymore (see: Mulvaney and tip pooling).

This isn’t to say the AHPs regulation isn’t a major administration priority and hasn’t been fast-tracked. It is, and it has. But we’re here to throw a bit of cold water on the timing projections. Now early summer could be more in the cards.

CO: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.comand bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Bloomberg Law’s Porter Wells will have the latest on the comings and goings of new OFCCP chief Ondray Harris, who has been meeting with at least some stakeholders in his short time on the job. Jacklyn Wille has been following the various lawsuits popping up lately challenging college and university retirement plan fees and management. This week, she’s previewing the first suit to got to trial, a dispute involving New York University. How do you feel about your open office plan? Martin Berman-Gorvine has some insight on how worklife in the great wide open impacts productivity.

See you back here next Monday.

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