PUNCHING IN: Joint Employer, Tight Lips at Labor Department


Monday morning musings for workplace watchers


By Chris Opfer and Ben Penn

Jostling Over Joint Employment | Mum’s the Word at DOL | Tribal Labor Bill Movement

Chris Opfer: What’s up with joint employment? All eyes are on the D.C. Circuit, which is expected to eventually decide whether or not to put its stamp of approval on the NLRB’s Browning-Ferris decision expanding potential liability for businesses in franchise, staffing and other contract arrangements. In the meantime, lawmakers on the Hill continue to discuss legislation to undo the ruling, which critics say could require businesses to bargain with workers employed by someone else. Worker advocates have a different take.

Rep. Bradley Byrne (R-Ala.) brought the issue up with Labor Secretary Alex Acosta during a one-on-one meeting last Thursday. Although the joint employer question started in the NLRB, the same businesses worrying about that are also concerned about an Obama era DOL Administrator’s Interpretation letter saying the joint employer standard should be applied broadly in minimum wage and overtime cases.

Some observers expect the NLRB to eventually walk back Browning-Ferris, especially after President Donald Trump fills two vacancies on the five-member board. But former board member and NLRB general counsel Ron Meisburg (R) told me any reversal isn’t coming soon. In fact, Meisburg doesn’t expect the board to tinker with any of its precedent until both openings are filled. That’s because of a long-standing, unspoken custom among members. 

“Where the law needs to be changed, the historic custom is that they won't overturn existing precedent and create new law without three members willing to vote that way,” Meisburg, who is now at Hunton & Williams, said.

That means the two Democrats among the board’s three current members aren’t likely to push for any major changes and any Republican-led efforts to undo Obama-era decisions won’t come until both slots are filled.

When will that happen? Give us your best guess at copfer@bna.com and bpenn@bna.com or via Twitter: @chrisopfer and @benjaminpenn.

Ben Penn: Joint employment will be a prominent discussion topic today at the International Franchise Association’s legal symposium in Washington. I’ll be checking out the action to hear what the in-house counsels at Papa John’s, Hilton and other national franchisers expect from the new blood at the NLRB and DOL. 

IFA chief Robert Cresanti told me in January that Obama’s DOL would always listen to his members’ concerns but never act on them. As Acosta gets settled in, how optimistic are the fast-food and hotel chains that they’ll enter a more cooperative relationship with the Labor Department? Maybe today we’ll find out. 

At the start of his second full week on the job, Acosta has yet to divulge his stance on DOL rules and strategies that he inherited from Tom Perez. The secretary is known for being a meticulous legal scholar, so that may be why he’s keeping the public in suspense before elaborating on what directions he’ll take the agency.

When the monthly jobs report came out Friday, for instance, the secretary didn’t give interviews to promote White House progress on achieving its jobs agenda. I’m sure in future months, after he’s had more than one week to get acquainted with his seat on the Cabinet, Acosta will resume the traditional labor secretary jobs-day responsibility of touring the cable news networks to be grilled on the numbers. 

CO: Sources tell Tyrone Richardson and me that the House Ed/Workforce Committee is likely to mark up the latest version of the Tribal Labor Sovereignty Act in the next month or so. The bill would shield casinos and other Indian businesses operating on tribal lands from collective bargaining and other responsibilities under federal labor law. It has strong GOP support and creates something of a sticky wicket for Democrats caught between tribal sovereignty and worker rights.

On the other side of the Capitol, one business lobbyist who’s been heavily involved in the issue told me Sens. Jon Tester (D-Mont.) and Heidi Heitkamp (D-N.D.) are expected to support the measure, bringing them closer to the at least eight Democrats needed to avoid a filibuster. Lobbyists are also targeting Democratic lawmakers from states with large tribal populations, including Al Franken (Minn.) and Dianne Feinstein (Calif.). Those two are probably going to be a tougher sell.

BP: The new labor secretary can’t be tight-lipped on DOL priorities for too much longer. The looming release of the White House’s full budget proposal means he’ll be testifying before the House and Senate labor appropriations subcommittees as soon as this month. Rep. Tom Cole (R-Okla.), chairman of the House subcommittee with jurisdiction over the DOL budget, has been trying to arrange a one-on-one with Acosta, but thus far hasn’t gotten anything on the books, at least as of late last week, Cole’s office told me [update: Acosta and Cole met last Friday, per DOL spokeswoman Jillian Rogers].

There weren’t many specifics in the Trump skinny budget blueprint published in March, without Acosta’s input. The few details we did learn on how the White House wants to slash 21 percent from the DOL budget included the elimination of grants from the DOL’s Bureau of International Labor Affairs

Influential umbrella organizations for business (U.S. Council for International Business) and unions (AFL-CIO) are aligned in opposition to ILAB funding cuts. They want to ensure that U.S. employers can compete on the global stage. When Acosta hits the Hill to justify the budget request, one has to expect members from either party to ask him to maintain ILAB spending.  

CO: Democrats in both chambers last week reintroduced an ambitious bill that would ban sexual orientation and gender identity discrimination in a wide range of areas, including employment. That came just days before Trump signed a religious freedom order that has some folks wondering whether it applies to federal employment discrimination laws.

If the past is prologue, the Democratic bill will once again die on the vine in the GOP-controlled Congress. It’s more likely that the Supreme Court weighs in on whether the existing sex discrimination law already includes sexual orientation before lawmakers actually take steps to update it. A three-judge panel in the Second Circuit said in March that it was bound by earlier decisions to find that a gay marketing executive couldn’t sue for sex discrimination related to alleged workplace harassment. The judges left open the question of whether he could sue for sex stereotyping. The Second Circuit is expected to decide soon whether to reconsider the case en banc, or with a full panel of judges. If it does, Duane Morris partner Jonathan Segal says that means the court is planning to reverse the earlier decision. That’s what the Seventh Circuit did last month.

“As you know the 7th Circuit, reversed itself en banc,” Segal told me via email late last week. “If the 2d Circuit were not seriously considering reversing its prior holding that sexual orientation is not covered by Title VII, there would have been no reason to have it heard by an en banc panel.”

BP: We’re punching out. Daily Labor Report subscribers can check back in with us during the week for updates. Bloomberg Law’s Patrick Dorrian has a story up now on the EEOC’s big win in a battle over privilege logs. Jasmine Ye Han is looking at the Pension Benefit Guaranty Corporation’s trouble with insolvent plans. Martin Berman-Gorvine has some insight into how employers can position human resources departments as strategic business partners.

See you back here next Monday morning.