PUNCHING IN: Joint Employer Week, Labor Budget Talk

Punching In

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Big BFI Deal | About the Labor Department Budget | Bye Bye ‘Blacklisting’ 

Chris Opfer: The joint employer liability issue is one of the first things that comes up just about any time I talk to someone in the labor and employment world. Ever since the NLRB decided in the Browning-Ferris case to revert back to an older, broader test for gauging whether a business should be on the hook as a joint employer – and even before that, really – folks on both sides of the debate have expected the issue to eventually be decided by the courts. That process moves a step forward this week when a federal court in D.C. hears oral arguments in the Browning-Ferris appeal.

“This is an enormous deal,” former board member John Raudabaugh (R) told me last week. No matter how the D.C. Circuit rules, Raudabaugh said he expects the case to ultimately go to the Supreme Court. “I think they would definitely grant cert,” said Raudabaugh, who teaches at the Ave Maria law school in Naples, Fla., said.

The main question for the appeals court is whether the board exceeded its authority by finding that a business can be considered a joint employer of another business's workers if it exerts indirect control over them. 

The answer will affect both franchise business relationships – McDonald’s and Domino’s are among those facing joint employer suits – and a wide range of companies that use staffing agencies and other contract work arrangements. The joint employer ruling was near the top of the list of board decisions that the Chamber of Commerce recently told Congress it would like to see undone. That’s not to mention workers, who many say simply want a seat at the table with the business that’s actually setting the terms and conditions of their jobs.

OK, maybe it’s not as big of a deal as a certain college basketball tournament starting later this month. We’d still love to hear your predictions about how the case will shake out. Send your best bets to us at copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. 

Ben Penn: You’re putting the cart before the horse, Chris. The Big Ten Tournament arrives here in Washington this week, and I’ve got my money on the hometown darlings, my Maryland Terrapins, to win it all. 

But in non-college-hoops predictions, here’s one to keep a watch on: I wager Donald Trump’s first budget proposal will seek to slash funding for the Labor Department. That’s not exactly a bold forecast. The White House has already said it wants to reduce discretionary spending on most non-defense programs, and submitted initial proposals to cabinet agencies last week.

The question is – Will the administration be giving DOL the Mr. Clean haircut or just a little trim, and how will the various subagencies be prioritized?

How much love is the DOL likely get from the president?  The department’s beachhead team spokeswoman Jillian Rogers responded: “The budget process is a complex one with many moving parts. It would be premature for us to comment – or anyone to report – on any aspect of this ever-changing, internal discussion before the publication of the document. The president and his cabinet are working collaboratively to create a budget that restores fiscal sanity to how we spend American taxpayers’ money.”

It’s a given that the first White House proposal doesn’t reflect what Congress ultimately appropriates. But considering we have a president who was elected because of job-growth promises, it would be very informative, and not premature, for us to learn Trump’s opening bid to fund DOL. 

Portia Wu, the DOL assistant secretary for employment and training under Obama, said funding  for those programs is critical. “That is what a lot of working class people rely on if they lose their jobs through globalization or economic shifts.”

One final thought - If the “president and his cabinet are working collaboratively” on the DOL budget, then who is representing labor in that negotiation? The process has begun without a labor secretary and it’s unknown whether any of the temporary political personnel or career leaders are advocating for their programs.

CO: This may also be the week that Republicans finally put a fork in the Obama administration’s Fair Pay and Safe Workplaces executive order. The order and implementing regulations, which would have required businesses to disclose various labor and employment law violations to compete for government contracts, has been on hold by a federal judge in Texas since last year. Worker advocates said the order would help ensure that businesses play by the rules if they want to compete for taxpayer money. Sen. Elizabeth Warren (D- Mass.) released a report this morning detailing alleged labor violations by federal contractors. Critics, however, said the order would allow government bureaucrats to “blacklist” contractors based on subjective interpretations of the law. 

There was a time (circa January 2017) when only one Congressional Review Act challenge had ever successfully blocked a regulation from going into effect. These days, the Fair Pay and Safe Workplaces regs are among a smattering of Obama-era moves headed for the scrap heap via the CRA. The Senate is expected today to pass a disapproval resolution to block the regulations. That resolution has already been passed in the House and is nearly certain to be signed by President Trump. 

BP: We’re punching out. Daily Labor Report subscribers can check back in with us during the week. Bloomberg Law’s Lawrence Dube will be covering all the Browning-Ferris action. Friend of the column Jon Steingart is watching a vote to raise the minimum wage to $15 in Baltimore. Jay-Anne Casuga is looking at religious freedom legislation and how it can affect the workplace.

See you back here next Monday morning.

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