PUNCHING IN: More on Joint Employer, Overtime, Auto Organizing


Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


Talk of Joint Employer Rule | Duties? Do We Need the Stinkin’ Duties? | Union Vote in Mississippi

Chris Opfer: With a new bill in the House, a decision from the D.C. Circuit coming soon, and a pending request for the Supreme Court to weigh in, the joint employer question isn’t likely to go away anytime soon. Now there’s word of another possible development: At least one management advocate says he has already made the case to the Labor Department to issue a new rule limiting the circumstances under which affiliated businesses can be tagged as joint employers under federal wage and hour law.

Roger King, the HR Policy Association attorney who until recently was the leading candidate for NLRB general counsel, said the association recently asked DOL to consider a new rule.

“We wanted to make sure they were aware of it,” King told me of the joint employer rule request. He added that the agency has many positions to fill before it can take on that kind of regulatory heavy lifting.

A Labor Department spokesperson confirmed that Secretary Alex Acosta met with HRPA, but didn’t say whether the specific subject came up. Others plugged into the push to limit joint employer liability said they’re not aware of DOL being asked specifically to update its existing joint employer regulation. One veteran wage and hour lawyer said he’d be “shocked” if not one had already made the request. It’s safe to also say that any movement on a rule is probably a long way off.

The regulatory route isn’t the perfect solution for the business community, but it may be the best available one. The House bill is a long shot in the Senate, and court battles over joint employment may not provide a definitive answer. On the other hand – as the ongoing overtime drama makes clear – the rulemaking process is an extended one that comes with its own set of obstacles. A rewrite of the rule would be a big blow for labor unions and their allies, who will decry it as another move to shortchange workers. 

How should the Labor Department define joint employment? Let us know at copfer@bna.com and bpenn@bna.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: This is the first full week for members of the public to weigh in on the DOL’s plans to rewrite the Obama administration’s overtime rule. The deadline to submit comments isn’t until late September, but is anyone ready to file already? Months before the request for information was formally published, Acosta signaled which direction he was leaning for a new proposal (resetting the salary threshold for overtime exemption to about $33k.)  But the Labor Department caught a few folks off guard with the RFI’s detailed questions on the duties test, which might require comment drafters to go back to the drawing board. The request for duties feedback even prompted some concern from the U.S. Chamber of Commerce, which said in a statement that opening the door to such changes is unnecessary.

Should this ambiguous part of the Fair Labor Standards Act’s rules governing overtime pay eligibility be modified in the new notice of proposed rulemaking? The duties test requires employees to perform a certain amount of managerial work to be exempt from the time-and-a-half mandate. By doubling the salary threshold to $47,500, the Obama DOL intended to significantly limit the number of situations where it mattered. Plus, in announcing the rule, then-Labor Secretary Tom Perez was thus able to tell employers: You told us not to mess with the duties test, and we listened.

Now that a new administration is in charge, will the management bar be willing to give duties changes fresh consideration? This question divided two former heads of the Wage and Hour Division during the George W. Bush administration. Both now represent employers for a living. 

Alfred Robinson of Ogletree Deakins told me it “could complicate and delay the rulemaking process if they try to start making more significant changes in the duties test.” 

“I hope they don’t go down that path and I don’t think that’s the path they’re heading,” Robinson said.

Paul DeCamp of Jackson Lewis had a different take. "Most of the litigation comes up because the exemption standards on the duties are ambiguous and difficult to apply,” he said.  Decamp said he’s glad to see that the DOL is open to comments on this topic. 

Plaintiffs’ attorneys seeking legal clarity on potential clients’ overtime status likely wouldn’t be thrilled about any new duties complexity.

Elsewhere in DOL this week, the Bureau of Labor Statistics will release the monthly employment report Friday, and it’s likely to show another solid job gain, according to our pals over at Bloomberg. Acosta made his cable news interview debut last month to tout June’s job gains. As appreciative as we were that he included Bloomberg TV as one of his two media hits that day, I’m curious whether the secretary is ready to branch out a bit this week.

CO: President Trump repeatedly pledged to be a friend to the LGBT community on the campaign trail. In the span of 24 hours last week, however, the administration made a couple of moves that has plenty of folks questioning his sincerity. First, Trump announced via tweet that he’s banning transgender soldiers from serving in the military. Later the same day, the Justice Department said it would reverse course on its previous position that the existing ban on sexual discrimination in the workplace includes sexual orientation and gender identity discrimination.

That has some wondering whether Team Trump might follow up by scrapping the executive order that explicitly prohibits LGBT discrimination by federal contractors. 

“Of course the series of blatantly hostile moves against LGBT people within the past few days heightens concern that the executive order will be part of this administration’s target practice on our communities,” Hayley Gorenberg, Lambda Legal’s deputy legal director, told me last week. “At a time when we have built legal momentum, and despite strong public support for fairness in the workplace, top federal government leaders seem bent on dragging us backwards.”

Bloomberg Law’s Jay-Anne Casuga recently explained to me that the executive order’s value depends largely on whether the government is willing to enforce it. The order doesn’t give workers a private right of action to sue for discrimination. The Labor Department Office of Federal Contract Compliance Programs has initiated only one administrative complaint that stemmed from LGBT discrimination allegations since 2015.

BP: The labor world will be fixated on Canton, Miss., Thursday and Friday when workers at a Nissan assembly plant vote on whether to unionize with the United Auto Workers. An organizing victory at the so-called Southern transplant would be massive for the UAW and would bring hope to a labor movement that’s in dire need of a positive headline. 

This election is a much different animal than the representation election at a Volkswagen plant in Tennessee in 2014, when the UAW suffered a narrow, dramatic loss. VW remained neutral throughout that drive, which appeared to be a done deal in favor of the union until a fierce band of GOP politicians and interest groups swooped in to convince just barely enough employees to vote no on UAW. Nissan, by contrast, has brought in the big dogs from Littler Mendelson to tell management’s side of the story, we are told. 

The anti-union campaigners will have a new talking point at their disposal in the final days leading up to the NLRB-supervised election. The DOL’s Office of Labor-Management Standards announced last week that a former UAW vice president was indicted on charges of dipping into the union’s training funds to line the pockets of UAW officers and employees. The timing of this indictment the week before the Nissan election is interesting.

UAW President Dennis Williams told reporters earlier this month that his gut tells him the UAW will win in Mississippi, but he also said his opinion can change on a daily basis. The UAW has been trying to organize workers at that factory for more than a decade. Petitioning for this election may be more of a symbolic gesture to the pro-union Nissan workers than a legitimate opportunity to gain a sorely needed win in the deep South. But hey, anything can happen. 

CO: We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates and more coverage on the push for a joint employer rule. Jon Steingart is keeping an eye on a Victoria’s Secret case in California. Today is the deadline for lingerie retail workers to submit a proposed settlement in a dispute over whether they should be paid for shifts when they call in and are told to stay home. 

See you back here next Monday morning.

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