PUNCHING IN: Government Shutdown, DOL Leadership Watch

Punching In

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


Thinkin’ ’bout the Government | Team Acosta | Future of Unions 

Chris Opfer: Shortly after Senate Republicans squashed the Neil Gorsuch Supreme Court nomination debate by changing voting rules to dismantle the Democratic filibuster, everyone took off for a two-week spring break. Lawmakers might want to get some R&R in now because there’s a lot to do when they return to the Capitol April 24. That starts with figuring out a way to keep Uncle Sam open for business. The continuing resolution currently funding the government is set to expire April 28.

The conventional wisdom is that lawmakers will wait until the very last minute to pass another CR, perhaps one that gets us through the rest of the fiscal year. But it’s not clear whether the Trump team will insist on new spending for the Mexican wall or increased military money as part of a CR deal. If it does, the White House may have another showdown with Freedom Caucus Republicans on its hands. That contingent of the GOP has made it pretty clear that they’re not too keen on breaking open the government piggy bank.

Here’s why folks in the labor and employment world should keep an eye on it: Many Republicans want to next year’s funding bill, which Congress could start debating in the coming months, to undo much of the Obama labor agenda. They can’t accomplish that without unity. The only way GOP lawmakers can successfully load next year’s House funding bill with riders to block Obama era initiatives like the overtime rule and joint employer liability expansion is if they don’t need any Democratic votes to pass the measure. That’s not to mention possible complications in the Senate. Republicans still need at least eight Democrats to get the 60 votes needed to pass an appropriations bill in that chamber, last time we checked.

Thoughts on how the government spending debate is likely to play out? Hit us up at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Ben Penn: The start of a congressional recess means that the state of paralysis at the Perkins Building will continue for at least two more weeks. Most policy decisions at the Labor Department still await Alex Acosta – or someone.

Even if he’s confirmed in the last week of April when the Senate returns, it’s going to take some time to get Acosta’s deputies and administrators installed. Bloomberg Law readers are already privy to the word that Alex Passantino and Scott Mugno are good bets to run the Wage and Hour Division and Occupational Safety and Health Administration, respectively

I’d also suggest keeping an eye out for Patrick Pizzella for deputy labor secretary. The Trump White House named Pat acting chairman of the Federal Labor Relations Authority. We’ve also heard he played an active role in the DOL transition and has already built a good rapport with Acosta.

Then comes solicitor, the third-ranking spot at DOL, and the only one occupied by an acting political appointee thus far in the Trump administration. Nicholas Geale is still the acting solicitor, and rumor has it he’s hoping to remove that temporary label. It appears Geale’s desire for the job has manifested itself in a politically neutral approach to the department. He’s said to not be issuing any edicts to DOL attorneys regarding major shifts in protocol. 

This could be a direct attempt to prevent any controversial decision now from muddying his eventual Senate approval to retain the job on a permanent basis. If Geale instructed enforcement agencies to cease workplace investigations until a secretary was confirmed, for example, it might come back to haunt him at a confirmation hearing.  

CO: We live in a world in which the Miami Marlins currently own a share of first place in the N.L. East, which means just about everyone should be reconsidering the future of our civilization. When the Steelworkers head to Vegas this week, the union is likely to take a more narrow approach. They’ll focus on how the union can better serve its 1.2 million members and maybe even add some new ones along the way. Bloomberg Law’s Jaclyn Diaz will be on the scene.  

The pow wow comes as labor groups across the country are still reeling from the November election results and the rise of right-to-work laws. Big labor is also bracing itself for possible huge changes in labor policy at the federal level. 

Will labor groups totally rethink their approach or simply double down in the Age of Trump? I talked to former Labor Department economist Heidi Shierholz about that a few weeks ago. Shierholz, who’s now over at the Economic Policy Institute, said unions and other worker advocates might want to take a page from the environmental movement to get the word out about the danger she says GOP government control poses to workers.

“A lot of the pushback is coming from the environmental organizations,” Shierholz said. “They’re doing a fantastic job, but the labor and employment side isn’t getting enough attention.”

The Trump labor resistance is likely to feature a two-pronged defense: Try to hold the fort at the federal level while looking to make advances in cities and states. A group of worker advocates met in New York last month to plot the local prong. It’s safe to say we will continue to see a push to beef up worker protections across the country, but also to better enforce the laws already on the books. How labor organizations come up with the cash to afford those activities remains to be seen. They’ll certainly be looking to worker centers and other non-traditional advocacy groups for some help.

BP: We’re punching out. Daily Labor Report subscribers can check back in with us during the week for more on Acosta, the Steelworkers and the next steps for Congress, among other news. Patrick Dorian is following a pair of stories about trends in Supreme Court voting on employment cases and issues related to whether and when a worker tells her boss she’s pregnant. We’ll also continue reading the tea leaves for insight on possible leadership roles at the Labor Department. 

See you back 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.