PUNCHING IN: Labor Nominees, SCOTUS Cases, and a Question for the NLRB


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Georgia on SCOTUS’s Mind? | Wading in the Tip Pool | And the Next NLRB Chairman Is… 

Chris Opfer: The Supreme Court is widely expected to eventually weigh in on whether the federal ban on sex discrimination at work covers sexual orientation bias . The question is “when”?  The justices may decide as soon as Friday whether the case of a Georgia security guard who said she was fired because she’s gay is the one they want to take. The Eleventh Circuit in March ruled against Jameka Evans, finding that her LGBT discrimination claim wasn’t covered by the Civil Rights Act. 

But the Evans case may not be the high court’s only bite at the apple. The full Second Circuit is currently mulling a case involving now deceased Long Island sky diving instructor Donald Zarda, who said he was canned after telling a customer he was gay. That dispute features an additional wrinkle: The Justice Department and the Equal Employment Opportunity Commission are on opposing sides in the litigation.

One reason the justices may wait for that one to play out is that the Evans case essentially doesn’t have a defendant. Georgia Regional Hospital, where Evans worked before she was fired, has tried to avoid litigating the appeal and has declined to take a position on the central question. But Greg Nevins, the Lambda Legal attorney who argued the Evans and Zarda cases, isn’t so sure the Court will wait.

“It’s actually more difficult that one might think to get a petition up there that presents this issue squarely,” Nevins says. “A lot of employers that don’t want their name on a case that could say ‘it’s OK to discriminate against lesbian and gay employees.”

Ben Penn: Welcome to an action-packed week. Let’s tackle it day-by-day:

Monday: This morning, the DOL’s Wage and Hour Division is proposing to scrap the Obama administration’s tip-pool rule. The 2011 regulation restricted employer-imposed tip pools by mandating that tips are the property of the employees who get them, including those already earning a full minimum wage. On the surface, this affects a narrow segment of the workforce. However, this rule reversal has enormous implications for restaurants and bars, and may present a big-picture indication of how the Acosta regime will handle low-wage workers.  

Contrary to the words of some Democrats and worker rights groups, a DOL official tells me this rescission would improve restaurant worker conditions: “This is really about the freedom to put together a tip-pooling arrangement that makes sense for everybody at a restaurant. The employees in a restaurant will obviously have the ability to make their own decisions about this.”

But wait, wouldn’t restaurants be able to force servers to share tips against their will? “I don’t think any employers would actually do that,” the official said, citing market incentives. “Employees are inherently going to be able to decide to move somewhere else if they want.”

Subscribers can read the full coverage in Daily Labor Report today.

Tuesday: A few folks who hope to join Labor Secretary Alex Acosta at DOL take the witness stand before the Senate Health, Education, Labor and Pensions Committee – nominees to lead the Bureau of Labor Statistics (longtime conservative economist William Beach) and the Occupational Safety and Health Administration (FedEx safety official Scott Mugno)

Some economists were wary that Trump’s campaign remarks about the BLS jobs report producing “phony” figures indicated that a political animal could be installed as commissioner. The commish is BLS’s only political appointee but traditionally operates in a nonpartisan manner to ensure the unemployment rate and employment gains are measured independently of White House influence. 

At the 10 a.m. EST confirmation hearing, smart money will be on at least one Democratic senator trying to get Beach to affirm his respect for the BLS mission of impartiality. 

Wednesday: Expect an influx of friend-of-the-court briefs to the Supreme Court in the landmark Janus v. AFSCME case on public sector union fees. The deadline for parties supporting the National Right to Work side is midnight Wednesday, and the question of the hour remains – Where does the Trump administration stand? See last week’s Punching In for more on what’s at stake. 

Thursday: The Senate HELP Committee will be clearing the decks for more DOL personnel to arrive. The panel members are planning to gather at some point Thursday to vote on advancing to the Senate floor Kate O’Scannlain (solicitor), and Preston Rutledge (EBSA).

But the duo, if approved as expected, would then only add to an already congested crew of labor and EEOC nominees who have cleared committee but not received a confirmation vote from the full chamber. A former DOL official who’s been tracking the nomination process says even with the Senate’s singular focus on tax legislation, GOP leadership hopes to move on Pat Pizzella for deputy labor secretary and perhaps others, such as Cheryl Stanton for WHD, before the New Year

What will their priorities be once they arrive at the Frances Perkins Building? Turns out you – yes you – can still chime in with advice by submitting comments on the DOL strategic plan by end of day Dec. 7. More info is here.

Friday: Finally the weekend will be near. As if one needed more evidence of what an extraordinary, whirlwind year this has been, this date will mark the one-year anniversary of Donald Trump tapping Andy Puzder as his original labor secretary pick. Let that settle in. 

CO: We reported last week that the Trump administration plans to tap management attorney John Ring to fill the soon-to-be open seat on the National Labor Relations Board. Ring, whose official appointment is pending a background check, would be the latest in a line of Morgan Lewis lawyers who have served on the board. What we still don’t know, however, is whether he will be asked to serve as the board’s chairman. Ring would replace current chairman Phil Miscimarra (R) on the five–member board, but that doesn’t mean he will also get the chairman role.

The thinking among many board watchers is that the chairmanship is a two horse race between Ring and current member Bill Emanuel (R). Marvin Kaplan (R), who worked on Capitol Hill and at the Occupational Safety and Health Review Commission before recently joining the board, is believed to be maybe a bit too green for the leadership spot. Although Emanuel has been at the center of some conflict-of-interest and recusal questions, similar issues would likely come up for Ring stemming from his decades in private practice. 

There’s also a timing element: Ring isn’t likely to be confirmed for weeks or even months after Miscimarra leaves. The Trump administration may want to name a chairman rather than giving the job to someone in an acting capacity until Ring joins the board.

Does it really matter who becomes chairman since all three Republicans are expected to be largely on the same page when it comes to labor law issues? Former NLRB Chairwoman Wilma Liebman (D) says yes, at least sort of.

“It’s called a weak chair in the sense that the chairman only has his own vote and doesn’t have real strong authority,” Liebman told me. “They do have a certain degrees of influence in terms of what cases go first and when the board meets. The chairman also takes responsibility for pushing case output.”

BP: Sooner or later, the Wage and Hour Division will start churning out opinion letters that provide legal clarity on fact-specific scenarios from companies, trade groups, and – at least in theory – unions and workers. The good faith defense these letters provide for an employer facing an overtime or minimum wage lawsuit has made them treasured commodities by the leading management-side workplace law firms. 

The WHD began soliciting letter requests in June, for the first time in about eight years, and as we speak the agency’s lawyers could be drafting a few responses while waiting for presumed incoming chief Stanton’s post-confirmation John Hancock. 

Some worker advocates are keeping a close watch on whether any businesses in the midst of litigation will use this process to seek opinion letters that bless the identical payroll practice that’s the subject of an ongoing lawsuit for back wages. Also worrisome to those in worker rights groups and plaintiff lawyers is whether employer trade groups might step in and request letters on behalf of members, who could then wave the WHD opinion in front of the judge.

The opinion letter practice thrived under George W. Bush, but back then the WHD typically didn't respond to requests from employers who were already defending the particular issue in private litigation. 

Enter the trade associations.

“It is clear from the past that the WHD would issue opinions in response to what could be viewed to be proxy requests made by associations or consortiums of employers even while the practices about which the requests were made were the subject of private litigation,” Brett Bartlett, who co-chairs Seyfarth Shaw’s national wage-and-hour litigation practice, told me. This led to published letters for the financial services industry and others.

Bartlett, a frequent submitter of opinion letter requests back in the Dubya years, cautions that how the Acosta/Stanton WHD leverages this tool won’t necessarily align with the prior practice. 

On another DOL note, there are a few new faces around the agency headquarters. A DOL spokesman tells Punching In of the following three recent political hires: 

  • Dan Greenberg: senior adviser at the Office of the Assistant Secretary for Policy. The former Arkansas state representative is a conservative lawyer and an alumnus of Cato and Heritage. He’ll likely be working on the secretary’s objective to remove occupational licensing barriers.
  • Diane Jones : senior policy adviser to the secretary. Jones, a Department of Education assistant secretary from 2007-2008, is responsible for the Trump administration initiative to expand apprenticeship, the spokesman says.
  • Laurie Rowe : senior policy adviser, Employment and Training Administration, with a portfolio of apprenticeship and credentialing. She’s worked the past 20 years in the private sector after a decade as a congressional staffer for lawmakers such as Sen. James Inhofe (R-Okla.). 

CO: The House Education and the Workforce Committee on Wednesday plans to huddle up and chat about paid leave policy. If you’re a regular Punching In reader, you may be thinking the Republican majority will want to spend most of the time talking up the new, business-lobbyist-backed bill that would shield employers from state and local leave requirements if they offer workers a certain amount of paid leave and flexible work arrangements. In the words of college football legend Lee Corso: “Not so fast, sweetheart.”

Bloomberg Law’s Tyrone Richardson tells us he hears that the measure will be simply one piece of the discussion. The bill hasn’t picked up any new cosponsors in the month since Reps. Mimi Walters (Calif.), Cathy McMorris Rodgers (Wash.) and Elise Stefanik (N.Y.) introduced it, despite getting the backing for the Society for Human Resources Management and U.S. Chamber of Commerce. Could it be that some GOP lawmakers are concerned about the states’ rights implications? Or do they simply have bigger fish to fry? I suppose we may find out on Wednesday.

BP: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us:  copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. Would a SCOTUS ruling in upholding class action waivers in arbitration mean an opening of the floodgates for businesses to use them? Jon Steingart is taking a look. What might be the next wave in smart technology, data, and retirement tracking? Jacklyn Wille and Carmen Castro-Pagan are on the case.

See you back here next Monday morning.

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