PUNCHING IN: Labor Dept Personnel Moves and More


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Labor Department Staff Shuffle | Google Saga Continues | Organizing in Right-to-Work States

Ben Penn: The Labor Department will be filling high-ranking political vacancies that don’t require congressional approval “very shortly,” and the White House also plans to announce its intent to nominate a number of subcabinet personnel in the next “couple of weeks,” a DOL official tells me.

But wait, before more bodies arrive at what’s been a short-handed political operation, two of Labor Secretary Alex Acosta’s existing advisers are playing musical chairs. Effective this morning, Wayne Palmer exited as Acosta’s chief of staff to become acting head of the Mine Safety and Health Administration. Nicholas Geale, DOL’s acting solicitor since February, replaces Palmer as chief of staff, while concurrently running the solicitor’s office.  


Geale told Punching In that Capitol Hill veteran Palmer’s seemingly sudden move has actually been in the works for a while. “It’s what Wayne ultimately wanted to do. He’s from Pennsylvania, and mining is in his family’s background,” Geale said.

Palmer’s move is also designed to address some challenges MSHA has had in ensuring inspectors are meeting medical requirements, amid reports that mining deaths are on the rise this year. The arrival of a top Trump team member could serve to appease coal miners who are valuable members of the president’s base.

Perhaps the wider-ranging effect of this shakeup for DOL stakeholders is that Geale now assumes the added responsibility of running the secretary’s office, taking away from his time as the chief legal officer for all DOL subagencies.

I asked Geale how he plans to meet the new challenge, considering we’ve been hearing that the solicitor job had him overwhelmed with too many litigation decisions and not enough fellow politicals to weigh in.

“We’ve gotten a lot accomplished already and we expect to continue to move the ball forward very effectively. More people have been coming on board and we expect to continue accelerating our policy initiatives on behalf of the secretary and the president. Look at our record–fiduciary rule NPRM is at OMB right now, guidance on joint employer has been withdrawn, WHD letters have been reinstated, overtime RFI—the list goes on. A number of regulatory initiatives have been sent to OMB or published over the last couple months, and I expect you’ll see more in the near future.”

Time will tell how that shakes out. But remember, full productivity on regulatory and enforcement matters is partially out of Geale’s control, as he needs the White House and Senate to advance nominees to head the Wage and Hour Division, Employee Benefits Security Administration, and other agencies … like now.

To prevent any further lags caused by the appointment process and Senate calendar, there are “people in the pipeline who will be taking over in acting capacities,” a DOL official said.    

Chris Opfer: We expect the Labor Department to ask an appeals panel this week to force Google to turn over more worker salary information. This is part of DOL’s ongoing investigation into alleged pay discrimination at the tech giant's California headquarters. The case, which was previously before an administrative law judge, has already been docketed with the department’s Administrative Review Board. The DOL signaled its interest in appealing the ALJ’s recent decision when it asked the ARB for an extension to file the appeal. The new deadline is Wednesday.

These are strange days for Google, which in the span of a couple months has found itself accused of discriminating against female workers on the one hand and unlawfully moving to squash the voices of workers who challenge the company’s diversity programs on the other.

Labor Department lawyers are likely to ask the ARB to order Google to turn over salary histories for some 25,000 workers, dating back to the company's founding in 1998. The ALJ last month blocked the request but said Google had to give the DOL a separate "snapshot" of pay, job duties, and other information for 21,000 workers, from 2014.

The Labor Department says it has already uncovered "systemic compensation disparities against women pretty much across the entire workforce" at Google as part of a random audit of federal contractors. But ALJ Steven Berlin in the July decision called the allegation "legally questionable and factually unsupported at this point."

Google spokeswoman Gina Scigliano told me last week that she wasn’t aware of an appeal in the case. Although the company indicated after Berlin’s decision that it would work with DOL on providing the data, it may also want the review board to take another look at the ruling and pare down the information to be turned over. The Labor Department declined my request for comment.

The appeal announcement comes days after Google found itself in the center of a media firestorm over its diversity policies. The company fired engineer James Damore over a manifesto criticizing the company's culture. Google said Damore pushed harmful stereotypes in the memo, but Damore argued he was trying to explain important differences between men and women workers.

BP: Back to the Frances Perkins Building, I’ve been curious of late about the status of DOL’s regulatory reform office, which was mandated by a Trump executive order. The Feb. 24 EO required each government agency to designate a regulatory reform officer and assemble a task force to identity regulations for removal or revision, based in part on whether the rules hurt job growth. 

The business community’s vehement opposition to multiple Obama administration labor regulations made us expect the DOL reform office to be a top priority. Yet thus far, we’ve heard nary a peep about its progress.

Turns out, a career official was originally involved in the project, and now Nathan Mehrens, currently the DOL’s acting assistant secretary for policy, is involved as well, a DOL official tells me. The reform office is still being developed and more details are subject to review by the Office of Management and Budget. 

Mehrens was a political attorney at DOL’s Office of Labor-Management Standards in the George W. Bush administration, then became president of conservative group Americans for Limited Government, before returning to DOL’s beachhead team on Jan. 20. He’s been an outspoken critic of the Obama DOL and has called for stricter oversight of union political spending. Daily Labor Report subscribers can read more on this development, but here’s a teaser: Mehrens was once considered in line to direct OLMS, but his role on the regulatory reform office shows the White House has bigger plans for a person some see as hostile to the labor movement.

CO: Last week, Jasmine Ye Han and I took a deep dive into NLRB stats to uncover the real impact of right-to-work laws. We found that unions are less than a third as likely to file election petitions in states that ban labor organizations from requiring workers to pay representation and administrative fees. It appears that unions have to be a bit pickier about where they try to organize in right-to-work states in order to get the best bang for their limited bucks.

Mark Neuberger, a management-side lawyer at Foley & Lardner in Miami, has another theory. He says unions may be filing fewer petitions in those states because there are fewer groups of workers they can convince to back them. “The conventional wisdom is that they don’t file any petitions unless they have close to 50 percent support,” Neuberger told me.

Neuberger said unions should also have a much easier time winning the elections they do get in RTW states because workers there can vote for the union and then decide not to pay dues. Or, as he put it: “I can vote for a piggy back and get a free ride.” 

Union organizers, for their part, say they face funding and various other challenges no matter where they’re operating. 

“We never can compete with management on financial resources,” Ben Speight, a Teamsters organizer in Georgia, told me. “We are outspent in the political realm and on the shop floor. We are only going to win when workers are heavily involved in the campaign.”

We’re punching out. Daily Labor Report subscribers can check in with us during the week for more updates on Trump administration personnel moves and more action at the Office of Federal Contractor Compliance Programs.

See you back here next Monday morning.

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