PUNCHING IN: Gorsuch Go Time, Labor Dept. Haircut

Punching In

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Good Morning, Gorsuch | DOL Reorg | Back Door Budget Cuts?

Chris Opfer: Freshly minted Supreme Court justice Neil Gorsuch gets his first taste of high court action this morning, a mere week after he was sworn in. Sure, the question of where a former federal employee should file his appeal of a Merit Systems Protection Board ruling isn’t exactly one that keeps most of us up at night. Still, today’s oral arguments in Perry v. Merit Systems Protection Board offer the first glimpse at how Gorsuch may approach his new role on the bench. Bloomberg Law’s Kevin McGowan will be on the scene at SCOTUS to see how the arguments unfold.

Will Gorsuch fashion himself as one of those strong, silent types in the mode of Clarence Thomas? Might we see some of his writing flair work its way into questioning during the arguments? Send us your thoughts at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Here’s an interesting take on the Trump administration’s government restructuring plan. A Labor Department source recently told me – in an expletive tinged rant -- that at least some folks inside the DOL think the plan is a way for Trump to get the budget cuts he wants without going through Congress.

As Bloomberg BNA’s Cheryl Bolen pointed out, the Office of Management and Budget’s instruction to agencies to start taking steps to trim their headcounts and cut spending dovetails with a March Executive Order designed to eliminate unnecessary government programs and expenses. It also comes after the White House proposed slashing the Labor Department’s budget by 21 percent next year.

Normally, a president submits a budget request to Congress, and lawmakers take that request into account (or ignore it) in drafting appropriations legislation that must then be signed into law by the commander in chief. Many observers figured some or all of Trump’s suggested cuts would be watered down in that process. My source at the DOL says he and some of his colleagues expect that the reorganization is intended to make the big budget cut a reality by forcing agencies to do more with less before Congress has a chance to weigh in.

Ben Penn: The reorg edict presented a perfect time to hit pause on my obsession with DOL political appointments. This week, I’m taking the pulse of the department’s core: the rank-and-file. Are they freaking out about potential workforce reductions? 

I checked in with the leaders of the two unions representing most of the 16,000 career employees in Washington (Alex Bastani) and the rest of the U.S. (Dennis DeMay). I asked them to respond to the OMB guidance and the DOL beachhead team’s short explanation of next steps. Until they receive more information, both Bastani and DeMay told me they aren’t panicking about job cuts.  

Bastani said he’s been assured by management that he’ll get a briefing on what the restructuring means for DOL. “We kind of dealt with this in the 2013 furloughs,” the AFGE Local 12 president told me. “The things that we’re always thinking about cutting instead of cutting personnel is training, travel and maybe performance awards.”

And although the DOL is ordered to get to work right away on this matter, it seems the agency will be operating largely in the blind in the first few weeks before the White House issues a more robust budget request, likely in May. As Chris referenced, the skinny budget blueprint published in March asked for a $2.6 billion reduction in DOL spending, but that was primarily through grant elimination, with no mention of staffing. 

DeMay paid the Perkins Building a visit earlier this month and relayed to me the sentiment he heard from the senior career executives. “Their big concern is what’s going to happen with salary and expenses,” he said. “They were hoping it stays fairly close to what it was. If they take a 1-2 percent cut of salary and expenses, they’d be able to keep everybody.” 

Oh, and I lied about no-political personnel chatter this week. DeMay says the DOL career higher-ups were all gossiping about the possible blast from the past if Patrick Pizzella gets nominated as deputy labor secretary, as rumored. We hear that would mean a return to yellow neckties in the building, per Pizzella’s preference.

CO: It’s also worth noting that the continuing resolution funding the federal government runs out in 11 days. My DOL source said the standard operating procedure is for agencies to put together a shutdown plan – describing how the agency will operate and listing which employees will have to keep showing up for work – four days before funding runs out. If that tradition holds, those plans will be in the works right around the time lawmakers return to the Capitol next week. And if the 2013 shutdown is any guide, D.C. area watering holes might want to start prepping too.

BP: This week, Bloomberg Law’s resident OFCCP guru Jay-Anne Casuga is taking a deep dive into the DOL federal contractor watchdog agency’s efficiency in Bush vs. Obama years. This takes on particular significance as the political tide is about to turn again at the OFCCP and old strategies get a fresh look.

The management bar’s common refrain the past eight years was that the Obama OFCCP’s audits were inefficiently thorough and led to minimal monetary recoveries. But the Bush administration might have juked the stats by inflating their numbers to include estimated annualized salaries and benefits for job offers that were negotiated in settlements and not necessarily collected by employees.   

Obama’s OFCCP only included back pay and interest that was actually paid to workers. In an apples-to-apples comparison, Jay-Anne’s analysis shows that the two administrations were roughly on par. Might be time to re-evaluate that inefficiency claim. Much more to come.

CO: We’re punching out. Daily Labor Report subscribers can check back in during the week. Jon Steingart is looking at the latest case in the ongoing debate over whether college athletes should (must?) be paid for their efforts on the field. Martin Berman-Gorvine is taking a good hard look at the skills gap and also has some insights on how employers can use digital media to improve diversity in recruiting. Patrick Dorrian is welcoming Gorsuch to the bench with a comprehensive review of how the high court’s other members have come down in employment discrimination cases. 

See you back here next Monday morning.

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