Punching In: High Court Court Watch, Nominees on Move


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Dick Griffin’s SCOTUS Sayonara | DOL: Up Close and Personnel | McDonald’s Chess Moves

Chris Opfer: I’m gonna venture a guess that NLRB General Counsel Richard Griffin (D) didn’t expect to finish out his term by arguing a case before the Supreme Court back when he started the gig in 2013.  But that’s precisely where the National Labor Relations Board’s top lawyer will find himself at 10:00 a.m. this morning, just two weeks before he leaves the NLRB, when the justices take up Murphy Oil. It’s Griffin’s first time arguing a before the court, where he will face off with another Trump administration agency. 

The question for the justices is whether an employer can force its workers to sign arbitration agreements in which they waive their rights to class actions and collective lawsuits. It’s a big issue for businesses that rely on the pledges to manage liability, as well as for worker advocates like Griffin who say the restrictions make it much more costly for employees to challenge their bosses in court. Dramaphiles like me are more interested in the showdown between the NLRB and the Justice Department.

“I do not recall that there has ever been a case in which a solicitor general took a different view than the board itself did,” Ronald Meisburg (R), who has served as both a board member and NLRB general counsel, told me last week.

Disagreeing with another agency over labor and employment issues has become something of a trend for this DOJ. Just last week, it squared off against the Equal Employment Opportunity Commission over whether the federal ban on sex discrimination covers sexual orientation bias.

In Murphy Oil, the DOJ – led by acting Solicitor General Jeff Wall – says the board didn’t give enough weight to the preference for arbitration as a means of resolving disputes that Congress wrote into the Federal Arbitration Act. Will SCOTUS agree? Give us your best guess: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: I thought it would happen before the leaves started changing colors, but as we enter October, the Trump Labor Department leadership team is starting to come into focus. The nomination last week of Kate O’Scannlain for the essential labor solicitor position provides further evidence that an Alex Acosta-led DOL will likely follow the mainstream conservative, Federalist Society blueprint.

The personnel selections thus far represent either homecomings for George W. Bush administration labor appointees (i.e., Patrick Pizzella, Martha Newton, Nick Geale, Nathan Mehrens); attorneys from big management law firms (O’Scannlain, Cheryl Stanton); or staffers for GOP lawmakers (Katherine McGuire, Wayne Palmer). O’Scannlain further resembles the Bush-era solicitor pick by being the offspring of a prominent judge (does the name Scalia ring a bell?)

Seemingly the only DOL political official who lacked a traditional Republican résumé, Curtis Ellis, is now apparently gone from the administration and back to penning columns for World Net Daily.  

Nominees to head ETA, OSHA, and EBSA, among other slots, are still missing, and the Senate hasn’t gotten around to voting on anyone besides Acosta. But here’s what we know: Policy changes on enforcement, compliance assistance, budget implementation – and maybe even new regulatory discussions – are all in sight. 

And with the arrival of new politicals, expect some longtime career executives to put in their two weeks’ notice. I’m told that as new leadership is on the cusp of arriving at certain DOL agencies, some civil servant officials are thinking the time is right to collect their government pensions. 

CO: Two days after Griffin goes before the Supreme Court, the man tapped to replace him will face the Senate HELP Committee. Vermont attorney Peter Robb (R) will be a key player in reshaping labor policy if confirmed for the general counsel job. 

“The role is extremely significant,” former NLRB member John Raudabaugh (R) told me last week. “The general counsel is the doorway that decides what cases will come before the board.”

Robb would join the board with a full plate of Obama-era decisions that Republicans and the business community would like to see undone. Many are hoping he starts with a joint employer Happy Meal for the franchising industry.

What would Robb do with the ongoing unfair labor practice litigation against McDonald’s? Griffin approved the charges based on a broad view of affiliated business liability, arguing that the fast food giant is a joint employer of franchisee workers. Griffin based that on the indirect control the company exerts over anyone who operates under the golden arches brand. The theory is currently before an appeals court in D.C. in a different case and is widely expected to eventually be rebuked by a GOP-majority board.

If he wanted  to kill the McDonald’s case, Robb could ask the NLRB administrative law judge hearing it to dismiss the joint employer claims, or he could try to settle them. On the other hand, he might want to allow the litigation to proceed and tee up the issue for the new board.

BP: I’ve heard some DOL watchers (you know who you are) say that 2017 is the ninth year of the Obama administration until more personnel are confirmed.  

But former department officials say complete uniformity in the field is impossible, regardless of how thin the political operation is at the Frances Perkins Building. The Labor Department has a massive bureaucracy with thousands of employees scattered across the nation, enforcing 180 federal laws affecting some 125 million workers.

Even long into an administration with a well-staffed team, you’re always going to have some people out in the regions and districts pushing positions that may not be consistent with how the administration would deal with it, said Gregory Jacob, who was the DOL solicitor for the final year of the George W. Bush White House.

But in the early months of the Acosta DOL, Jacob – who practices wage-and-hour and ERISA law at O’Melveny & Myers – has noticed a slight change of attitude from even some of the senior career leaders answering the phones in Washington. When he feels his employer clients are subjected to incorrect interpretations of the law, it’s all about picking the right spots to act to inform DOL headquarters.

“The key point is that you have an audience there if you need it,” provided you “are sensitive to the fact that they are very busy and they can’t pay attention to a game of whack-a-mole,” Jacob said. But when he’s placed calls just before the department is about to publicly file a complaint, Jacob said he’s managed to buy his clients some time or the DOL has moved on entirely. 

Did he have the option under the Obama DOL of at least attempting to talk the agency out of filing a complaint or an amicus brief? “Not always,” Jacob said, after taking a diplomatic pause.

CO: We’d be remiss if we didn’t mention that Thursday is the deadline for young, undocumented immigrants in the deferred action for childhood arrivals program to renew their work permits if they expire before March 5, 2018. Bloomberg Law’s Laura Francis tells me the Trump administration has declined to budge on that deadline, despite calls for flexibility. The pickle for DACA recipients who want to continue working is that acting DHS Secretary Elaine Duke during a recent Senate hearing turned down a chance to say that the feds won’t turn applicants’ info over to Immigration and Customs Enforcement.

Several bills pending in Congress would provide legal status to the DACA population, but it’s not clear whether some kind of deal can be reached before the program formally ends in March. 

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. The day before the HELP Committee takes up Robb’s nomination, the panel is scheduled to (finally) vote on Pat Pizzella for Deputy Labor Secretary, as well as Janet Dhillon and Daniel Gade for posts at the EEOC. Over in the House, the Education and the Workforce Committee is set to mark up Republican Rep. Bradley Byrne’s joint employer bill on Wednesday.

See you back here next Monday morning.

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