Labor Secretary Chatter, Who Needs the NLRB?
Monday morning musings for workplace watchers
Talking Labor Secretary | Who Needs the NLRB? | Overtime Update
Chris Opfer: Pro football coach Bill “Big Tuna” Parcells once told reporters that putting a team together is a lot like choosing the ingredients for a meal. “They want you to cook the dinner; at least they ought to let you shop for some of the groceries,” Parcells said. President-elect Donald Trump is working his way through a shopping list of Cabinet officials, and could be nearing a labor secretary selection. Now’s probably a good time to take a look at some of the people believed to be in the running.
Ben Penn: Thanks for teeing this one up for me, Chris – if Trump is in the mood for fast food (which indeed he is), then the man credited with rescuing the Hardee’s burger chain, Andy Puzder, will get the gig.
I must confess that when Puzder, the CEO of the restaurant conglomerate that operates Hardee’s and Carl’s Jr., first circulated as a potential labor chief, we were skeptical that the rumor might originate from the Puzder camp. Well, looks like we sold short on the author, blogger, ex-trial lawyer and frequent public speaker. It’s reported that Puzder’s name is rising to the top of the transition team’s labor secretary short list. And as I wrote last week, that could pose ethical conflicts if a DOL enforcement agency investigates one of his stores.
Puzder isn’t the only name in the mix. Here’s more on the leading contender and a few others:
CO: The Trump team also has a couple of slots to fill on the National Labor Relations Board. In the meantime, Republicans in Congress are salivating at the chance to revamp the board, given GOP control of both the White House and the Capitol. “The NLRB is going to look a lot different” Rep. Phil Roe (R-Tenn.) told Bloomberg Law reporter Tyrone Richardson and me earlier this month.One of Roe’s colleagues on the Education and the Workforce Committee might take it a step further. Rep. Bradley Byrne (R-Ala.) isn’t so sure that the board should even continue to exist.
“I would say we ought to consider whether we need a board at all,” Byrne told me outside the House floor last week. “Let’s put everything into statutory law and continue to have the NLRB function as regional units for the enforcement of the law. If they need to go to an administrative law judge, they could still go there and they could go ahead and go through the court process from there. But I wonder why, with settled law, we need to have a National Labor Relations Board going forward at all.”
Byrne is a noted Duke Basketball fan. In our neck of the woods, that’s grounds for a high dose of skepticism. But he’s also a former labor lawyer and someone that incoming committee chair Virginia Foxx (R-N.C.) has said she intends to rely on heavily for insight into workforce policy matters. Since Trump has made clear he wants to slash government regulations, might he start by trimming at the NLRB?
BP: Why mere skepticism over a Dukie? In my book, that’s grounds for disqualification. Sorry Mr. Byrne, the NLRB ain’t going anywhere.
Meanwhile, I’m off to neurotically refresh the overtime rule litigation docket a few more times. This could change by mid-morning, but here’s where the case stands:
As anticipated, the government filed a notice of appeal last week, along with a request to expedite the process, in the hopes that the Fifth Circuit will reverse a nationwide injunction that’s put the regulation’s status in serious peril. Perhaps we’ll see this week if the traditionally conservative New Orleans appeals court feels the same sense of urgency as the feds.
But even the briefing schedule proposed by the DOJ would carry into the Trump administration, so yet again, we find ourselves waiting for the Donald to shed some light. Seems that even though he’s got lobbyists and Republicans in his ear telling him how disastrous the rule would be for business, the risk of blocking a middle-class raise has thrown him a political curveball.
CO: One of the ways Republicans are trying to kill the overtime rule is by going home early. If at least one chamber of Congress finishes up for the year by Friday, GOP lawmakers can restart the clock on their Congressional Review Act challenge to the rule. First, they have to pass a continuing resolution to keep the government open for business into the next year. Most of the big-ticket labor policy riders that were chucked into House spending legislation earlier this year likely won’t be in the CR, but there could be a few items of interest.
Bloomberg Law’s Laura Francis told us there’s no word yet on whether lawmakers will use the funding measure to renew the EB-5 regional center program. The program lets immigrant entrepreneurs pool their investments to qualify for green cards. Judiciary Committee Chairman Chuck Grassley (R-Iowa) and others have said the program should be scrapped altogether if it isn’t overhauled to combat abuse. Francis tells us, however, that most folks watching the program think it isn’t going away any time soon.
We also don’t know whether the CR will include a provision to let low-skilled seasonal workers return to the U.S. without counting against the cap on H-2B visas. Tourism, entertainment, landscaping, seafood and other businesses want to be able to staff up with returning workers. Critics, like Trump attorney general pick Jeff Sessions (R-Ala.), are concerned that the visas are used to drive down wages and job opportunities for American workers.
Then there’s the ongoing battle over truck driver work-hour limits. We’re hearing it’s likely the CR will continue the freeze on a Transportation Department rule that would limit truckers to 70 hours behind the wheel per week. Bloomberg Law’s Hassan Kanu pointed out that the debate over the wisdom of that rule--some say it forces drivers onto roads during the busier daylight hours--comes as DOT is running late on guidance for drug-testing drivers via their hair follicles.
BP: That about wraps things up for us, so we’ll punch out for now. Daily Labor Report subscribers can check in with us during the week. Bloomberg Law’s Jacklyn Wille will be following up on the Supreme Court’s decision to take up a trio of cases challenging hospital pension plans. Economics reporter Larry Swisher is taking a look at how business economists are reacting to Trump’s policy proposals.
See you back here next Monday morning.
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