PUNCHING IN: Janus and Joint Employment


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Jumping Ship on Janus? | The Other Joint Employer Case | Gig Workers’ Knight in Shining Armor?

Ben Penn: Barring an extension, the National Right to Work Legal Defense Foundation will by Wednesday file a Supreme Court brief in the colossal labor case Janus v. AFSCME. Unions and management seem to agree that with Justice Neil Gorsuch on the bench, this one will almost certainly turn out unfavorably for public sector union finances. The case poses something of an existential question for the labor movement: Can a public union can charge representation fees to nonmembers covered by a collective bargaining agreement?

We already have a sense of the NRTWLF’s argument that nonmember agency fees violate workers’ First Amendment rights. That’s because petitioner Mark Janus is represented by the same organization that’s haunted the labor movement for decades, including in the parallel Friedrichs v. California Teachers Association in 2015.

The more interesting question is whose side will the Trump administration be on? Will it support the pro-right-to-work groups, including Cato and Heritage and their ilk, or the public sector unions that represent teachers, firefighters, municipal workers, and more.

In theory, the Justice Department could sit this one out. But recall that under the Obama White House, DOJ and Labor Department co-authored a friend-of-the-court brief that defended government unions’ right to collect fees from workers who don’t pay membership dues but are still represented by the collective bargaining agreement. Obama Solicitor General Donald Verrilli presented oral argument in support of the union in Friedrichs, a month before Justice Scalia’s death deadlocked the high court, setting up the repeat debate now before us.

It sure sounded as if DOL’s acting chief legal officer Nick Geale was ready to endorse the anti-AFSCME position when he broached Janus at the Federalist Society convention this month. Why else would Geale describe it as a “very interesting” case with briefs to be filed shortly, when addressing a room filled with NRTWLDF attorneys and their conservative pals? 

Geale deferred to the Justice Department Solicitor General’s office when I asked him whether DOL would once again be weighing in. The SG’s office declined to comment. 

Let’s wait and see before we talk about the implications for the Trump administration’s relationship with the labor movement if it pulls a U-turn in Janus. Similarly, I’ll hold off discussing how it could fracture the solicitor general’s office’s reputation before the Supreme Court. Clarity on the government’s decision will come soon enough.

But if we learned a lesson from other labor and employment legal proceedings this year (see: Murphy Oil and Zarda), it’s to be fully prepared for this administration to flip again.  

Chris Opfer: We’re in the last week of November and the Miami Hurricanes - my law school alma mater - are headed to the ACC Championship. If you’ve been rooting for the Canes for the last 12 years or so, then you know this is a clear sign that the apocalypse is nearing.  

Business groups and management lawyers have been predicting a different type of doom and gloom stemming from the Browning-Ferris Industries joint employer case. We’re still waiting to see whether, as many suspect, the D.C. Circuit will uphold an NLRB decision expanding joint employer liability for businesses in franchise, staffing and other contract relationships. That would be bad news for businesses, they say, by making many responsible for workers they don’t actually control.

We have some news in a separate joint employer case already pending before the Supreme Court. Public Citizen attorney Michael Kirkpatrick is now representing a group of satellite technicians who say DirecTV is on the hook for unpaid overtime as their joint employer. The case has flown under the radar a bit compared to Browning-Ferris, but it raises similar questions about whether indirect control over another business’s workers is enough to create joint employment and what role the relationship between two businesses plays in that analysis. 

The Supreme Court could decide as soon as Dec. 8 whether to take up a Fourth Circuit decision finding that DirecTV is the technicians’ joint employer for minimum wage and overtime pay purposes. The justices could also ask the Solicitor General’s office for its views on the matter. The SG, in turn, may very well want to Labor Department to weigh in. Meanwhile, the workers’ original lawyers continue to litigate the question of whether they’re owed unpaid overtime in federal district court in Maryland.

BP: Our Amazon overlords haven’t fully monopolized the post-Thanksgiving holiday shopping business … yet. And that means this week begins a period where the Wage and Hour Division has, at least in recent years, been extra suspicious of bad-acting retailers.

Under the Obama wage-hour chief David Weil, the WHD would use this time of year to raise public awareness of retail workers’ vulnerability to being worked off the clock and denied minimum wage and overtime pay. Weil wrote a blog post on it in November 2015 that appears to have now been taken down amid a new administration that’s taking a fresh look at its predecessors’ priorities.

I asked the WHD what gives with the vanished blog and whether fighting retail-sector wage abuse is still happening during the 2017 holiday season.

“WHD recognizes the spike in temporary and part-time hiring by retailers and other businesses to accommodate their seasonal increase in volume around the holiday shopping season,” Edwin Nieves, a DOL spokesman, said in an emailed statement. “The agency remains committed to ensuring that employers have the tools they need to comply with the law, and that employees know their rights.”

Be that as it may, retailers have reason for optimism that WHD chief-in-waiting Cheryl Stanton won’t police their industry with the same suspicion of guilt as they experienced in recent years. 

But a full list of industries that this agency will focus on for enforcement and compliance assistance can’t truly be determined until Stanton gets confirmed by the Senate. At this rate, her nomination to head WHD may not get a vote until Black Friday 2018. 

Speaking of DOL personnel, last week in this space I commented on the laundry list of business concerns awaiting the next Office of Federal Contract Compliance Programs director. Punching In presumed that man was likely Florida attorney Craig Leen, based on federal contracting community sources (and Leen himself!). 

Today we tell you, hat in hand, it turns out Leen is not the pick to head the OFCCP, but has instead been tapped as the federal contractor watchdog’s senior adviser. Leen begins that post today, a DOL spokesman tells Punching In. 

One more staff shuffle: GOP Hill veteran Rosemary Lahasky has been promoted from the Employment and Training Administration chief of staff to ETA deputy assistant secretary. That makes her the top-ranking political appointee for the time being at the agency tasked with carrying out Trump’s apprenticeship push. This follows a headhunt reset when the White House pulled original ETA choice Mason Bishop, and the recent retirement of acting ETA assistant secretary Byron Zuidema. 

CO: Is the Labor Department the last, best hope for gig workers who feel like they’re getting the short end of the stick? It should be, if you ask Cathy Ruckleshaus. The National Employment Law Project’s general counsel recently told me the department is uniquely positioned to fight for gig workers’ rights. 

“I do think the department is going to be one of the only enforcement arms available to gig workers,” Ruckleshaus told me.

That’s because many sharing economy employers – like many traditional businesses – require workers to sign mandatory arbitration agreements and collective action waivers. That means they have to litigate cases against the companies individually, a more expensive and time-consuming process that may serve as an insurmountable obstacle to many gig workers. 

California’s Private Attorneys General Act gets around that problem by keeping some lawsuits on behalf of groups of workers in the courts. Outside of the Golden State, Ruckleshaus says gig workers’ best bet is to take their complaints to the Labor Department. DOL has the power to enforce wage, hour and other federal laws and isn’t bound by any agreements between businesses and workers. In fact, the department is authorized to launch investigations and audits even without a complaint.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. Bloomberg Law’s Jay-Anne Casuga will be in the courthouse tomorrow when SCOTUS takes up an interesting question about retaliation protections for Dodd-Frank Act whistleblowers. Jon Steingart is keeping an eye on Seattle, where the city is expected to respond to the latest round of arguments that and ordinance allowing Uber and Lyft drivers to unionize is preempted by federal law. We’re also interested in hearing Secretary Acosta’s remarks at the Western Governors Association’s annual meeting on Friday.

Feel free to reach out to us with any tips:  copfer@bloomberglaw.com and bpenn@bloomberglaw.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

See you back here next Monday morning.

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