Punching In: Musical Chairs for the Trump Administration

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By Chris Opfer and Ben Penn

Monday morning musings for workplace watchers

Full Court Pearce Press | Leen In | Sherk Island

Chris Opfer: There’s less than a month left on NLRB member Mark Gaston Pearce’s (D) term and little sign that the Trump administration is planning to give the former chairman another four years on the labor board. The business community is actively opposing Pearce’s potential renomination, but the former board chairman’s supporters are still holding out hope. Labor unions like the AFL-CIO and Communications Workers of America have been urging Senate Minority Leader Chuck Schumer (D) to make some sort of deal to keep Pearce on Half Street.

Senate Democrats have refused to waive floor debate requirements for various Trump administration nominees, keeping those picks on the sidelines for now. That’s because Majority Leader Mitch McConnell (R) would prefer not to clog up the schedule on certain Labor Department nominees when he can use the time instead to move judicial nominations and fill higher-priority administration posts. Democrats could offer to skip 30 hours of debate on one or more of the stalled nominees in exchange for another term on the board for Pearce, sources tell Ben, Hassan Kanu, and me.

Wage and Hour nominee Cheryl Stanton, OSHA pick Scott Mugno, and BLS chief-in-waiting William Beach are among that could be part of a deal. The confirmations of a handful of Equal Employment Opportunity Commission nominees are also still pending. But some Senate Republican concerns about President Trump’s renomination of Chai Feldblum (D) are likely to keep keep the agency out of any possible labor and employment edition of “Let’s Make a Deal” on Capitol Hill.

A last-minute meeting of the minds is still a long shot. The business community has been vocal in its opposition to Pearce, whom they blame for various worker-friendly board decisions and see as obstructing the Republican majority’s moves to undo those rulings. There’s also plenty of precedent for simply keeping the spot open: former president Barack Obama left a Republican seat unfilled for two years after Harry Johnson left the board in 2015.

Ben Penn: The political team at the Frances Perkins Building is down a body this week, following Ondray Harris’ abrupt departure Friday after less than eight months of service atop the OFCCP.

Harris is the first Labor Department subagency director to leave an Alex Acosta regime that is still somewhat thinly staffed on the political side as is. His temporary replacement at the federal contractor-auditing office, Craig Leen, has already become a familiar face to practitioners over the past year in his role as Harris’ senior adviser.

It’s possible that Leen, an old acquaintance of Acosta’s from their days in South Florida, eventually gets tapped for the permanent directorship, a source familiar with the process tells me. The source adds that there are also other candidates in the mix.

Before we move on to Leen, we’re not quite through with Harris. The terms of his exit remain hazy.

Several OFCCP watchers told us they always figured Harris saw the agency as a short-term transitional gig and that he was never fully committed to the job. His talking points frequently focused on apprenticeship, an area that is aligned with the secretary’s top-line agenda but doesn’t truly fall into the OFCCP’s discrimination and equal opportunity purview.

Then there’s the whole LinkedIn issue. Throughout his service at DOL, Harris’ public LinkedIn profile promoted his interest in an in-house counsel job.

Call me cynical, but wasn’t it already implied that a federal official is always auditioning for a big corporate pay day?

And if the LinkedIn solicitation did lead him to find an employment match, the exact landing spot could have some implications for OFCCP business. There are some people inside DOL who for months have assumed Harris was coveting an in-house position in Silicon Valley. There are some big tech companies out West (Google or Oracle ring any bells?) that are in the midst of high-stakes litigation that originated from an OFCCP investigation.

Finally, another source who tracks the OFCCP speculates there’s a possibility Harris resigned after landing in Acosta’s doghouse in the aftermath of the OFCCP’s leaked plans to relax pay equity enforcement. I’m not sure if I’m ready to believe this theory, but I do know the secretary doesn’t like to be blindsided by a negative headline.

As for Leen, we’re curious to hear his vision for the OFCCP’s continued business-friendly transition that comes closer by the day to the U.S. Chamber of Commerce’s laundry list of recommendations. Bloomberg Law’s new OFCCP/EEOC reporter Paige Smith will be on the scene in Anaheim, Calif., this week at the National Industry Liaison Group conference to hear Acting Director Leen deliver the keynote address. Give Paige a shout if you’re there.

CO: Sources tell Tyrone Richardson that a House Republican paid leave bill could get a mark up before the end of the year, but I don’t expect President Trump to put his John Hancock on this one anytime soon.

The measure, which the Education and the Workforce Committee considered in a hearing last week, would give businesses a safe harbor from state and local leave laws if they provide certain leave benefits and flexible work arrangements to their workers. It’s backed by heavy-hitting employer-side advocates like the Chamber of Commerce and the Society for Human Resource Management, but it has to raise at least some states rights concerns for Republican lawmakers. The bill still only has four cosponsors—Education and the Workforce Chairwoman Virginia Foxx (R-N.C.), who would have to schedule the bill for a mark up, hasn’t yet signed on—and isn’t likely to generate much if any support from across the aisle.

Maybe that’s why we haven’t seen a companion version of the legislation introduced in the Senate.

BP: If you dial up the Trump White House to talk labor and employment policy, one man typically is there to answer. His name is James Sherk, and anyone tracking labor over the past decade is likely familiar with his resume.

During the Obama years, Sherk’s deregulatory, anti-union focus at the Heritage Foundation made him a go-to ally for business groups and the National Right to Work Foundation.

But ever since joining the White House Domestic Policy Council last February, he’s been stretched thin. The DPC staff has been largely focused on health-care policy, leaving James running point on labor without a team behind him. I’m told there is only one other person at the DPC whose portfolio touches labor and employment: Kara McKee, a former GOP Hill staffer and Scott Walker presidential campaign aide. Now McKee is getting ready to depart the administration this fall to pursue an MBA at the University of Chicago, a White House officials tells me. More here on the departure of McKee, a low-profile staffer who worked closely with Ivanka Trump on the recent workforce development executive order.

The DPC plans on reassigning staff duties to fill her void, but it appears Sherk is about to get slammed.

People who know James say he is up for the job because he’s highly motivated and productive. But he’s got another secret weapon that could smooth the staffing shortage challenge: the White House’s top workplace policy agenda items mostly come from Ivanka Trump’s team rather than the DPC. The apprenticeship and workforce development initiatives that the labor secretary and others in the administration are constantly touting are coordinated out of Ivanka’s Office of Economic Initiatives.

So with Ivanka’s office running the workplace show, that just might leave James Sherk with ample time to continue picking up your calls or responding to your emails.

CO: The EEOC has until Aug. 28 to respond to a Michigan funeral home’s request for the Supreme Court to decide whether it violated federal law by firing a home director after she told the company she was transitioning from a man to a woman. The Sixth Circuit in March became the first federal appeals court to rule that Title VII of the Civil Rights Act’s ban on sex discrimination in the workplace includes gender identity bias. The case is one of three that the high court could use to determine whether the law covers various types of sexual orientation and gender identity discrimination. It’s also the most likely to test the rift between the EEOC and Justice Department on that question.

The EEOC, which sued the funeral home on behalf of Aimee Stephens, says LGBT discrimination is already banned under Title VII. The Justice Department, which would have to approve the EEOC’s participation in the case at the Supreme Court level, says Congress didn’t have that type of protection in mind when it passed the law in 1964.

I’ll have more on that this week.

We’re punching out. Daily Labor Report subscribers can check in during the hiatus for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.comand bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn. Watch for news from Hassan and Josh Eidelson from Bloomberg News on the NLRB Lanetix complaint. Bloomberg Law’s Andrew Wallender is looking at Hollywood’s latest depiction of labor organizing in “Sorry to Bother You.” Grab your popcorn.

See you back here next Monday.

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