Punching In: Full Slate for Congress, Courts


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


New Supremes Season | Beehive of Nomination Activity | Big Apple, Big LGBT Case

Chris Opfer: We’re three weeks into the NFL season and my beloved New York Giants have yet to put a game in the win column. The good news is there’s plenty of action elsewhere to divert my attention from the slowly sinking ship over in Jersey and it’s strangely coiffed captain

The Supreme Court kicks off a new season today with a conference list that includes a big labor dispute. Will the justices take another look at whether public sector unions can force nonmembers to pay “fair share” fees? We should know by Thursday.

The court seemed ready to stick a fork in the fee requirement last year but wound up deadlocked in a 4-4 decision after then Justice Antonin Scalia died. Observers on both sides of the debate generally expect Neil Gorsuch, who replaced Scalia on the bench earlier this year, to carry the ball across the goal line for the right-to-work crowd this time around.

If the court puts the kibosh on fair share fees, are similar union security clauses for the private sector—permitted in some states—also on the chopping block? Give us your best guess: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Then there’s the big kahuna issue for the labor and employment bar, at least as far as cases to be argued this term go. It’s what legendary college announcer Keith Jackson might call “the granddaddy of them all.”

Can businesses require workers to sign contracts waiving their rights to bring class actions against their employers? Not even the federal government is on the same page on that one. Next month, NLRB general counsel Richard Griffin (D) – just a few weeks before his term expires – will urge the justices to ban the agreements as unlawful restraints on workers’ collective rights. The only problem is that the Justice Department recently changed its mind on the question and asked the court to rule that the contract clauses are enforceable. The agency had a different take in the last administration. 

Bloomberg Law’s Jay-Anne Casuga has more for Daily Labor Report subscribers on what to expect from these cases and others on deck for the Supreme Court this term here.

Ben Penn: If you took the under earlier this year on whether we’d have a fully staffed National Labor Relations Board by the close of fiscal 2017, it looks like you’ll be cashing in by day’s end. Barring any surprises, the NLRB will have its first Republican majority in nearly a decade after the full Senate holds a final vote this evening on management attorney William Emanuel to fill the five-member board’s sole vacancy. The roll-call vote on his confirmation is scheduled for 5:30 p.m. 

It will take time, maybe years, before the Trump NLRB will have a chance to reverse some of the Obama-era decisions that were despised in employer circles. But Emanuel may not get much of a grace period if outgoing Chairman Phil Miscimarra (R) has his way. Miscimarra recently stated his intentions to issue as many decisions as possible before his term ends in December. That’ll give Emanuel a short turnaround. 

CO: I’ll be in the courthouse in downtown Manhattan tomorrow when a full Second Circuit becomes the latest federal appeals panel to take up the question of whether the ban on sex discrimination in the workplace covers sexual orientation bias. This is a debate that many observers believe the Supreme Court will eventually decide. It’s also another example of the Trump Justice Department splitting from a sister agency on a labor and employment legal question.

The DOJ over the summer filed an amicus brief in the case, arguing that gay and lesbian workers aren't protected under existing federal civil rights law. The EEOC is taking the opposite position, asserting that the estate of gay skydiving instructor Donald Zarda can sue his former employer for allegedly firing Zarda because of his sexual orientation. A three-judge Second Circuit panel said in a separate case earlier this year that it was barred by previous precedent from expanding the federal discrimination law to include LGBT bias.

Here’s the rest of the current court split: The full Seventh Circuit in April overturned its own precedent and held that sexual orientation bias necessarily is sex discrimination. An Eleventh Circuit panel went the other way on the question a month earlier. The Georgia security guard who in that case said she was fired because of her sexual orientation has already asked the Supreme Court to weigh in. 

Greg Antollino, who will argue the Second Circuit case for the Zarda family, told me he’s not surprised that the DOJ changed its mind. “Consider who is in charge of making that decision,” Antollino said, referring to Attorney General Jeff Sessions.

He also doesn’t expect the DOJ’s change of heart alone to sway the court.

“I think that the judges will decide on the case based on whether they believe that the EEOC’s interpretation of the statute is correct,” Antollino said. “They are going to make the decision based on the quality of the legal argument.”

BP: The Senate Health, Education, Labor, and Pensions Committee has finally freed up some time to vote on whether to advance Patrick Pizzella’s nomination as deputy labor secretary.  Pencil that into your schedule for Wednesday, when the committee is also supposed to vote on moving two Equal Employment Opportunity Commission nominees to the Senate floor – Janet Dhillon (chair) and Daniel Gade (commissioner).

Dhillon and Gade’s hearing proceeded last week with minimal controversy, so one has to figure the Republican-majority HELP Committee will tee their nominations up for a vote on the Senate floor.   

As for Pizzella, despite objections from Democrats about his former lobbying partner Jack Abramoff, the confirmation remains more a matter of when than if. As a quick refresher, some figured he’d have arrived at DOL in August, but Sen. Richard Burr (R-N.C.) was a no-show at the first committee vote on Pizzella. This prompted the committee to delay the vote, forcing the nominee to sweat out the summer recess with his confirmation still not locked in.

Assuming he advances and is confirmed, how might Pizzella’s homecoming to DOL affect operations? As chief operating officer, the deputy secretary essentially runs the show at the Frances Perkins Building, freeing up Secretary Alex Acosta to tour the country, sit in on White House meetings, and sell the nation on the agency’s progress.

Pizzella, who held a senior role at the department in the prior GOP administration, was brought back largely because of his familiarity with the scene. He’ll now be asked to hit the ground running by overseeing a new budget, a White House-directive to reorganize the agency structure by eliminating waste, and perhaps a revitalized effort to find a new home for the DOL headquarters. 

One might hope Pizzella’s been using the weeks since the Senate delayed his first vote as an opportunity to research the pressing challenges he’ll face on day one.  

I’ll leave you with another DOL personnel note. Rosemary Lahasky, a Republican staffer on the House Ways and Means Subcommittee on Human Resources, begins today as the Employment and Training Administration’s chief of staff, according to a DOL spokeswoman. Lahasky – who previously worked on the House Education and Workforce Committee and at the U.S. Chamber of Commerce, per her LinkedIn profile – joins the ETA as it implements the White House’s apprenticeship initiative and plays a role in trade and immigration policies.  

We’re punching out. Daily Labor Report subscribers can check in during the week for updates from the courts and Congress. We’re hearing this is the week House Republicans will (finally) unveil their paid leave proposal. 

See you back here next Monday morning.

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