PUNCHING IN: Future of Work, 'Blacklisting' in Rearview


Punching In

Monday morning musings for workplace watchers

DOL567

By Chris Opfer and Ben Penn

Death to Unions?| Bye Bye ‘Blacklisting’| The Case of the Disappearing DOL Blog Posts

Chris Opfer: So much for somebody else hoisting the Super Bowl trophy. If, like me, you spent the better part of yesterday parked in front of a TV, taking down chili by the pint and gnawing on chicken wings three at a time, you may be looking to gently ease into the week. The trouble is that there’s a lot on tap in the labor world this week.

Will the latest Republican national right-to-work bill hammer the last couple of nails into the coffin for organized labor as we know it? Color me skeptical about the odds of at least eight Senate Democrats crossing the aisle to pass legislation that would ban unions from requiring  nonmember bargaining unit workers to pay representation fees. Still, the steady drop in total unionized workers in the private sector has workplace watchers of all stripes talking about what’s next for Big Labor.

I recently sat down with a diverse group of labor and employment leaders to talk about the workforce of the future and the legal and regulatory implications associated with it. Rep. Bradley Byrne (R-Ala.), the ranking member on the Education and the Workforce Subcommittee on Workforce Protections, dropped in to give us a sense of where he sees Congress headed in the near future and how the legal landscape might change to reflect new developments in the way people do their jobs. Former Labor Department Wage and Hour Division chief Paul DeCamp also joined the discussion, along with SEIU Vice President David Rolf, National Association of Manufacturers policy director Amanda Wood, and Machinists lawyer James Conigliaro Jr., founder of the Independent Drivers Guild for Uber drivers.

We discussed a wide range of issues related to the workforce of the future, including the role of labor unions and worker centers in the 21st century. We also chatted about the rise of robots and automated systems on factory floors and fast-food counters, the shift to independent contractor relationships, and the wage and hour issues that come with workers using their smartphones to do business off the clock. To check out the conversation (it becomes available on Feb. 7) – and pick up some free CLE and SHRM credit along the way – register here.

Ben Penn: After months of speculation on when and how President Trump would pull the plug on Obama labor regulations, answers are materializing. POTUS 45 will start laying to rest #44’s workplace rules as soon as this week. The gears are grinding to roll back the Labor Department’s fiduciary and overtime rules, but first in line for an official demise: the Fair Pay and Safe Workplaces executive order, or as the opposition rebranded it – the “blacklisting” EO. The shorter, snappier name is the one that tended to stick. Trade association lobbyists can take a bow.

The Senate is expected to vote soon on a resolution that would block the rules, which require federal contractors to disclose labor and employment law violations when bidding on new contracts. Trump’s advisers will urge him to sign this Congressional Review Act disapproval resolution when it reaches the Oval.

The White House decision on blacklisting queues up what Democrats, progressive groups and ex-Obama DOL officials are pitching as a test of Trump’s populist message. They argue that if Trump is serious about creating good jobs and raising wages, then he should embrace an EO ensuring that taxpayer dollars reward only companies that protect employees’ wages and safety.

The coalition of supporters would love to salvage this multifaceted order that involved years of advocacy at all three branches of government. But they’re also not naïve. Even if Hillary Clinton had won the election, implementing the rules would have been a battle. A federal judge temporarily halted the EO in October, hours before it would have taken effect, and Congress declined to fund an office to enforce it.

As much as I’d like to exit the predictions business, I’m going to call it right here: The Fair Pay and Safe Workplaces EO is about to die a relatively quiet death. It’s been a fun ride.

Will the next Democratic administration revive this attempt to use federal spending as leverage to improve worker conditions? Or will the FPSW wounds cut deep enough to push the next Democratic president to scrap this plan altogether? And while we’re at it, who will that next president be? Send us your thoughts at copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

CO: Questions about LGBT worker protections are likely to stay in the spotlight, despite the Trump White House’s efforts to tamp down that talk. Here’s what we know:

White House press secretary Sean Spicer’s office said in a release last week that Trump will continue to enforce an executive order that bans federal contractors from discriminating against workers based on sexual orientation and gender identity. Although Spicer said the executive order “will remain intact,” advocacy groups continue to fret over rumors that the White House may consider expanding an existing exemption for religious-affiliated employers.

Those concerns hit a crescendo when the Nation reported that a sweeping draft “religious freedom” executive order is circulating in Washington. That order, according to the report, would in Hobby Lobby style extend the exemption to “closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious.” White House sources later told ABC News that the draft order was one of hundreds making the rounds. The sources said some of those orders were drafted by the administration—others were not—and added that not all of the drafts were likely to become White House policy.

In other words, keep watching.

BP: Trump created uproar over immigration policy from the moment he announced his candidacy through the aftermath of his Jan. 27 order banning entry of immigrants and refugees from seven countries. That debate can only intensify as we learn more about the border wall. The new administration’s dramatically different posture on immigration appears to have manifested itself in a far more subtle form inside the Labor Department.

Under Obama, the DOL’s Wage and Hour Division made a concerted effort to protect the paychecks of undocumented immigrant employees. The agency targeted investigations at worksites with a heavy concentration of immigrant workers who are less likely to file complaints voluntarily. A source tells me blog entries highlighting this initiative disappeared from the DOL website the afternoon of Jan. 20, right after the beachhead team arrived. Other blog items focused on employers survived the cut, I see from my own look at the website. The new administration has preserved for now some blog entries describing independent contractor misclassification and the importance of worker voice, but I couldn’t find anything promoting WHD enforcement to aid immigrants.

In an administration that is prioritizing job opportunities for Americans, it will be very interesting to see how the DOL opts to leverage its limited budget to strategically recover wages owed to foreign-born, low-wage employees.

CO: That’s it for now. Daily Labor Report subscribers can check back in with us during the week for Jacklyn Wille’s look at some of the potential roadblocks facing the folks who want to steamroll the fiduciary rule. Martin Berman-Gorvine will also give you everything you ever wanted to know about the latest trends in family and sick leave. Meanwhile, Bloomberg Law data reporter Jasmine Han and I are wondering whether some of Andy Puzder’s most vocal critics might get a little more scrutiny from the Labor Department.

We’re punching out. See you 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.