Punching In: Government Freeze Thaws, Union Leaders Jailed

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By Chris Opfer, Jaclyn Diaz, and Tyrone Richardson

Monday morning musings for workplace watchers

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Chris Opfer: Government workers can’t strike, but they can call in sick. Was last week’s LaGuardia Airport traffic halt the straw that broke the camel’s back, melted the border wall funding stalemate, and forced the White House and Congress to reach a deal to reopen the government? We may have to wait for the tell-all books to hit the stands to get a full picture of what happened behind the scenes to end (at least temporarily) the longest government shutdown on record.

The House Education and Labor Committee has postponed hearing scheduled for Thursday on how the funding snafu has affected the Equal Employment Opportunity Commission.

Bloomberg Law’s Paige Smith reported earlier this month that the shutdown slowed hundreds of cases in which the commission is suing to enforce federal workplace discrimination law. The EEOC was also forced to sit out arguments in two important appeals court cases testing protections for LGBT workers.

Raising the federal minimum wage is another item likely to be high on the committee’s agenda. Hassan Kanu talked with Heidi Shierholz from the Economic Policy Institute about the coming debate, in this week’s Punching In podcast.

Jaclyn Diaz: The shutdown is over, but the impact on regulatory work may still be coming down the pike. Effects might be seen sooner rather than later with possible complications in the DOL’s recently released rule on workplace injury reporting requirements for certain employers.

The DOL seems to have gotten itself in a pickle and managed to tick off both sides of the aisle. The rule rescinds an Obama-era requirement for work sites with 250 or more workers to submit online logs and provide detailed information about workplace injuries and illnesses, as Bruce Rolfsen has reported for us.

Not surprisingly, Public Citizen, an advocacy group often aligned with worker organizations, filed a lawsuit Jan. 25 challenging the revision. The suit argues that the agency failed to provide a reasonable explanation for the policy change, among other things. But the U.S. Chamber of Commerce has also indicated that it hasn’t ruled out a lawsuit on the revision. The Chamber says the Labor Department didn’t go far enough to protect private information for employers and workers.

This rule—and its accompanying lawsuits—may not be just the DOL’s problem. The Office of Information and Regulatory Affairs reviewed and released the rule during the 35-day shutdown, which may leave it open for a lawsuit or congressional investigation, say Amit Narang and Shanna Devine, with Public Citizen.

If you remember, Narang raised a similar concern last week, saying the proposed overtime rule could be vulnerable to a court challenge because of a mid-shutdown OIRA review. Certain agency work is allowed to continue during a shutdown if it’s considered “excepted activity,” under federal law. Neither the overtime nor the workplace reporting rule fits the bill, he argues. Rep. Bobby Scott (D-Va.) seems to be considering taking a look into this very question.

Here’s one reason OIRA may have felt a time crunch: Employers otherwise would have been required to provide injury reporting information by March.

Tyrone Richardson: President Donald Trump’s renominated picks for DOL and EEOC leadership roles are restarting the waiting game, and their precise paths to confirmation remain largely unknown.

I asked Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.) if he intends to have new confirmation hearings for nominees that already had hearings during the last Congress but didn’t get confirmed. I’m wondering if instead Republicans may look to move nominees quickly through the committee and tee them up for a full floor vote.

“They have to be renominated first and then we will see,” Alexander told me last week.

For those keeping tally: There are 111 agency nominees awaiting confirmation, according to the Partnership for Public Service, a nonprofit that keeps track.

That includes EEOC commissioner nominee Janet Dhillon (R) and general counsel pick Sharon Fast Gustafson. Cheryl Stanton (Wage and Hour) and Scott Mugno (Occupational Safety and Health Administration) are among Labor Department picks who were recently renominated.

JD: Let’s go back to the shutdown for just a second. (It lasted for 35 days, don’t think reporters are going to drop this story so quickly).

Before a deal to reopen the government was announced, furloughed federal employees and their union leaders took the halls of Congress by storm urging congressional representatives to vote to reopen the government. For some of them, the day ended in a jail cell.

Paul Shearon, president of the International Federation of Professional and Technical Engineers; National Federation of Federal Employees President Randy Erwin; and American Federation of Government Employees President J. David Cox were carted away in cuffs last Wednesday after taking the protest to Senat majority Leader Mitch McConnell’s (R-Ky.) office door.

“Union leaders went to McConnell’s office to demand he take action. It’s the job of the Senate to fix this and instead he has abdicated his authority to the president,” Shearon told me last Thursday.

McConnell’s staff declined to meet with the protesters and told them the senator wasn’t around. Unfettered, the group took the demonstration to the hall outside his office. That didn’t sit too well with Capitol Hill police who gave the group one warning to disperse before the handcuffs came out and a paddy wagon pulled up outside.

“They started arresting us one by one, cuffing us up, and lining us up against the wall,” Shearon said. “They marched us out of the building and into a waiting police wagon.”

Once in jail, the group was divvied up eight to a cell. Shoelaces and belts were removed and the frisking commenced. Over the course of two hours, Shearon said, each representative was questioned by police. Don’t be fooled into thinking union presidents are soft with the lofty lives they lead—the officers couldn’t crack these jailbirds. “We refused to answer their questions without a lawyer there,” he said.

Before someone creates a GoFundMe page to pay for bail, don’t worry, the prisoners were released before dinner time after just two hours behind bars, and with new arrest records to point to for street cred. This image of union leaders being led away in cuffs likely won’t have the negative effect on membership that others have. Union leaders are also hoping for a shutdown-related bump.

“People historically not active in the union” became involved during the shutdown, and hopefully that involvement continues well after this standoff, Shearon said.

CO: Call me a skeptic, but I’m guessing the union leaders were quite tickled about their short stints in the slammer. We’ll know for sure if we see them using their mug shots as LinkedIn profile pics.

New pay requirements for Uber, Lyft, and other for-hire drivers in New York City go into effect on Friday. The new standard will lift drivers’ minimum wages to more than $17 an hour, which the city Taxi and Limousine Commission expects will shake out to about $15 an hour after expenses like maintenance and gas. The move is designed not only to protect drivers, but also ease traffic problems caused by a deluge of for-hire cars on the streets.

“The idea is to moderate future growth and to ensure they can cover expenses and make a reasonable per hour earnings,” James Parrott, an economist at the New School’s Center for new York City Affairs, told Bloomberg Law. The Center advised the TLC on the effort.

The first-of-its-kind pay requirements come at an interesting time for drivers and others who are classified as independent contractors, instead of traditional employees. The National Labor Relations Board late last week reverted to an approach that makes it easier to classify workers as contractors. The Labor Department has already walked away from the Obama-era view that the overwhelming majority of workers are employees, entitled to wage and hour protection, workers’ compensation, unemployment insurance, and other benefits. A federal appeals court last year pumped the brakes on a Seattle ordinance that would have allowed Uber and Lyft drivers to unionize despite their independent contractor status.

I’ll be watching to see if the new pay obligations cause Uber, Lyft, and Juno prices to jump the next time the L-train shuts down and I have to hail a ride back from Brooklyn.

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.com, jdiaz@bloomberglaw.com, and trichardson@bloomberglaw.com or on Twitter: @ChrisOpfer, @jaclynmdiaz, and @TyrichardsonPC.

See you back here next Monday.

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