Monday morning musings for workplace watchers
Advice from Acosta | NLRB + EEOC = ‘Marital’ Bliss | The Joint Employer Burden
Ben Penn: The labor secretary may be more of a Washington insider than his boss at the White House. Still, based on Alex Acosta’s message to lawyers last week, he wants to drain the swamp just like Trump.
Secretary Acosta had the ears of a ballroom full of labor and employment attorneys Nov. 9 at the American Bar Association’s labor and employment law conference. He offered some pointed advice on how to interact with his department: Be a lawyer, not a lobbyist.
“One of the things that I’ve noticed since coming back to Washington is I can think of particular cases where rather than come in and make the argument, folks try to use surrogates. They go around town. And that doesn’t work,” Acosta, who previously had stints at the Justice Department and NLRB, said. “Being lawyers first, and not lobbyists – at least under this administration - that’s what is going to make the difference.”
Acosta’s plea to follow the rule of law was calibrated for his audience at the ABA. But it may also lend itself to his appearance today before the largest business lobby in the land.
We’re told the secretary is among the scheduled attendees at the U.S. Chamber of Commerce labor committee meeting. The Chamber’s closed-door session is an annual event that Obama officials also attended. Something tells me that the Chamber probably feels confident the meeting will influence Acosta’s actions more than it did his predecessor.
Chris Opfer: This may be the week that Peter Robb (R) officially takes the reins as NLRB general counsel. The Vermont attorney was slated to talk at the ABA conference last Friday, but that appearance was canceled when it became clear he wouldn’t be sworn in on for his new gig on time. Turns out President Trump didn’t get a chance to sign the necessary paperwork during his swing through Asia.
Acting NLRB general counsel Jennifer Abruzzo, who showed up to the shindig in Robb’s place, gave an interesting update from the board’s top lawyer shop. Abruzzo confirmed that she’s working with the EEOC to try to resolve an increasingly pesky issue for employers and their workers: Where does protected speech on the job end and unlawful workplace harassment begin? The line has been obscured over the last couple of years, including by a recent Eighth Circuit decision forcing Cooper Tire to rehire a worker canned for shouting racial slurs at strike breakers. It’s also at the center of a separate unfair labor practice complaint by a Google worker fired for voicing some cavemanesque views about diversity on the job.
Abruzzo said she’s been working with EEOC Chairwoman Vicki Lipnic (R) and Commissioner Chai Feldblum (D) “to develop joint guidance” on “how to marry up” federal labor law and employment discrimination laws. “One thing we have to make sure of is that people feel comfortable about talking to one another about major, significant, horrendous – or maybe not so horrendous – things that are going on in their workplace without fear of reprisal,” she said.
I was in the room when Feldblum talked about the project in September. This time, Abruzzo struck a more optimistic note about the possibility of getting the guidance done. “We’re going to get it together for you and hopefully that will be helpful to everyone,” she said.
Of course, it’s safe to assume that the new general counsel will want to take a gander at any guidance before it goes out the door. Subscribers can read more in Daily Labor Report today.
BP: This is a jammed week, so let’s break it down:
Today: In addition to hitting up the Chamber, Acosta hosts the first apprenticeship expansion task force meeting this afternoon. This kicks off a series of events held in what DOL is still calling apprenticeship week. Considering the Trump Labor Department has made an effort of showing that the apprenticeship initiative unique from the one established by Secretary Tom Perez in the Obama administration, I'm a little surprised they retained the name.
Plus, look out for the Supreme Court to possibly decide whether it will review the Hill v. SEIU case that could determine the legality of exclusive representation for public sector unions. There’s a possibility the high court will punt and hold the case until after the justices decide Janus v. AFSCME (probably at some point next year, and almost certainly to strike down agency fees – to unions’ dismay). Speaking of Janus, the National Right to Work Foundation won’t be filing its brief on the merits in that case today, as originally scheduled. The NRTW has been granted a delay until Nov. 29, which will also likely push back oral arguments until February.
Wednesday: I’ll be checking out the action on both sides of Capitol Hill, when Secretary Acosta testifies before the House Education and the Workforce Committee in the morning, followed by the Senate confirmation hearing for a pair of DOL nominees in the afternoon.
Acosta’s topic – “examining the policies and priorities” of DOL – is not particularly illuminating. A committee GOP spokeswoman says members plan to cover a broad range of topics, such as regulations and apprenticeships. Not that I would ever tell the workforce committee members how to do their jobs, but the secretary’s comments on labor relations and the gig economy at the ABA meeting only scratched the surface. Deeper probing would be welcomed.
Over at the Senate, the Health, Education, Labor and Pensions Committee will hold a hearing at 2 p.m. to consider the nomination of Kate O’Scannlain for Labor Solicitor and Preston Rutledge to head DOL’s Employee Benefits Security Administration. O’Scannlain, a Kirkland & Ellis partner who represents big corporations in sales and transactions, and Rutledge, a Senate Finance Committee Republican staffer with a tricky conflict-of-interest issue, likely won’t have much time to articulate how they’d fulfill their pivotal would-be jobs. Their hearing is split with three nominees for the Department of Education.
Thursday: Back on the Acosta beat, the secretary joins an esteemed panel of labor and employment officials at the Federalist Society’s National Lawyers Convention. If you’re into L&E, this session has something for everyone. Joining Acosta on the panel: His Acting Chief of Staff/Solicitor Nick Geale, the EEOC’s Lipnic (R), and NLRB Chairman (for one more month) Phil Miscimarra (R).
CO: As Robb settles in to his new role as the labor board’s top lawyer, we’ll be watching to see what he does with one high-profile case: the litigation against McDonald’s alleging that the fast food company is the joint employer of workers at franchisee restaurants. Will he drop the case, settle it or maybe tee it up for the new, Republican board to revert to a more limited approach to the hot-button issue?
Much has been said about the joint employer question. Supporters lauded the board’s decision in Browning-Ferris Industries to expand liability in a way they said better reflects the fractured maze of contractual relationships that businesses and their workers find themselves in these days. Businesses and management-side lawyers have painted the joint employer push as a thinly veiled effort to unionize the fast food industry. They also argue that the Browning-Ferris standard would make some employers liable for workers they don’t actually control.
Last week, the NLRB’s Miscimarraadded another argument to the case against Browning-Ferris: the board simply can’t handle the volume of litigation likely to come with an expanded joint employer standard.
“This is an area that if we start getting all of the potential charges filed that could result from a strict application of BFI and we start seeing all of the potential parties brought into representation cases that qualify as potential joint employers under BFI, I don’t think the NLRB as an agency can handle this,” Miscimarra said.
He pointed to the CNN case, which the board reviewed under the previous, more limited joint employer standard. “The litigation involved more than 10 years, resulting in 82 hearing days, a set of 1,300 exhibits and a transcript that exceeded 16,000 pages,” Miscimarra said. “These are the types of cases that can be very, very burdensome for the board as an entity.”
Those comments prompted Mark Gaston Pearce (D), who was on the three-member majority in the Browning-Ferris case, to note that the D.C. Circuit should be ruling any day now on a challenge to that decision.
“We will see, Chairman Miscimarra,” Pearce said.
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: firstname.lastname@example.org and email@example.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.
See you back here next Monday morning.
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