PUNCHING IN: New Blood at NLRB, Labor Department Deadlines


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


NLRB Nomination Week? | DOL Deadlines | Apprenticeship Next Steps

Chris Opfer: Any day now, we expect the Trump administration to formally announce the nominations of Bill Emanuel and Marvin Kaplan to fill the two vacant seats on the NLRB. The White House was supposed to unveil Trump’s picks for the board last week, but that appears to have been held up at least in part as a result of schedule shuffling following the shooting of Rep. Steve Scalise and others at a congressional baseball practice. Employer community representatives and Republicans have been badgering the administration to get on with the nominations so the board can start undoing decisions from the Obama years and will welcome the announcement when it comes. Still, it’s going to take some time before the first GOP-majority board in nine years puts its stamp on federal labor law.

For one thing, it may be awhile before Emanuel and Kaplan are confirmed by the Senate. Lawmakers are only in session for about four weeks – they return home for the Fourth of July – before a month-long summer recess in August. The Republican majority is trying to get a health-care bill done during that time, and appropriators are focusing on at least pushing drafts of funding bills for next year out the door. That’s not to mention that the NLRB openings are nowhere near the only ones that the administration has to fill. Given that Democrats made it clear that they’ll stretch out the confirmation process for each and every nominee, the schedule is likely to be jam-packed before summer break.

Even once Emanuel and Kaplan get to the board, change may be slow. The board can only decide the cases that land in front of it. That means we have to wait for a new case on joint employer liability, micro-unions, or organizing on private college campuses before we see how a new board will address those issues. To the extent the NLRB eventually decides it wants to backtrack on the representation election rule, it will have to go through the entire rulemaking process. In other words, get comfortable.

What will the new National Labor Relations Board tackle first? And when? Send us your thoughts and questions at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Ben Penn: Labor Department staff can put the gold curtains in storage. Donald Trump’s visit to DOL last week didn’t happen because of the shooting, and that means Secretary Alex Acosta, his skeleton crew of politicals, and career employees are resuming normal operations.         

I hate to sound like a broken record, but the question that remains on everyone’s mind is when will the White House give final approval to Acosta’s appointments? For the positions requiring Senate approval, forget about meeting that pre-August recess deadline. I’m setting the over-under at New Year’s 2018.  

Rather than hazard a guess on the timing of appointments and policy decisions, let’s stick with what we know to be true. We might not learn much new this week, but here are a few looming deadlines in the next month facing DOL that should prove revelatory: 

  • June 27: That’s the rescheduled date for Acosta to defend the DOL budget request before the Senate subcommittee on labor appropriations. Acosta showed his hand more than expected at his House budget hearing June 7, so maybe he’s even more forthcoming when he heads over to the Senate.

  • June 30: Fifth Circuit deadline for the Trump Justice Department – with the DOL solicitor’s office coordination – to file a brief in the Obama administration’s appeal of a federal court decision to block the overtime rule. With acting Solicitor Nick Geale still in need of help, I’m keeping my eye out for the DOJ to file another extension request. We could be waiting for answers on this tricky matter for a while.

  • July 10: That’s when the administration must submit to the U.S. Supreme Court a response to an industry-backed request that the high court consider invalidating the DOL’s tip-pool reg. The DOL and DOJ, at least for now, are teaming up on a strategy to defend this Obama-era rule that determines when front-of-house service industry workers may share tips with back-of-house employees. Similar to the overtime rule, one would expect a more employer-friendly Trump administration to consider reversing course. Or the White House could roll the dice and let the high court’s new conservative majority nullify the rule.

CO: Yesterday, I was in Phoenix for the Special Libraries Association’s annual conference. I talked about labor and employment issues in the gig economy. Or should I say I talked about the labor and employment issue in the gig economy: worker classification. The debate isn’t going away anytime soon. The timing of my talk couldn’t have been better: I flew out to Arizona the day after an administrative Law judge in New York upheld a decision finding that Uber drivers in the state should be classified as employees (not independent contractors) for unemployment benefits purposes. 

Sure, we’re talking about one ALJ’s decision in one state. Uber will almost certainly appeal. If Uber doesn’t succeed in the courts, however, the ride-sharing companies may eventually be looking at a maze of state laws that force them to classify drivers differently depending on where they’re operating. 

“While ruling is one judge in one state in the unemployment context, the case demonstrates that so many issues regarding independent contractors – in the gig economy and elsewhere – are decided, and will continue to be decided, not at the federal level, but rather at the state level, either in court or through state administrative proceedings, like when a jobless worker applies for unemployment benefits or an injured worker files a workers' compensation claim,” Terri Gerstein, who until recently was Labor Bureau chief for New York State Attorney General Eric Schneiderman, told me over the weekend via email.  “There is a decentralized aspect to how these issues will play out, and there has been a lot of focus at the state level on misclassification in recent years, so a prudent employer who wanted to avoid future liability would definitely proceed with extreme caution in labeling any worker in the grey area as an independent contractor.”

Gerstein is currently an Open Society Foundations Leadership in Government Fellow.

BP: Workforce development week may have ended, but the Trump administration’s effort on apprenticeships – if it’s to be taken seriously – hasn’t begun in earnest until the Labor Department gets to work on drafting the implementing regulations. 

Much was made about the White House intentions to put industry in the driver’s seat on new apprenticeship strategies, and to reduce the role of government regulators. But DOL still must determine what quality standards businesses and other third parties must abide by when submitting apprenticeship models for federal approval. 

So what will these new industry-recognized guidelines entail, and how will they differ from the traditional DOL registration process that industry groups criticize? 

“In the Department of Labor registered apprenticeship, they lean towards support for seat-time based – you have to be in the apprenticeship program for a certain number of hours of training and a certain number of years,” Emily DeRocco, who ran the DOL’s Employment and Training Administration in the George W. Bush administration, told me. “Industry-apprenticeship models are more competency based.”

CO: We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. Patrick Dorrian will be reporting live from San Antonio at the National Employment Lawyers Association annual convention. Jay-Anne Casuga and Jasmine Ye Han will be bringing us another deep dive into the Office of Federal Contractor Compliance Programs audits. And Martin Berman-Gorvine will explore how to prevent and address workplace violence.  

See you back here next Monday morning.

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