Punching In: Overtime Aftermath, New BLS Chief, Worker Center Questions

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Hard Times for DOL in Texas Courts | Tinkering with Labor Market Math | Worker Center Uncertainty

Chris Opfer: Who said April is the cruelest month? November has been a tough one for organized labor and worker advocates. First, they came up short in the fight to keep Donald Trump out of the White House and get Democrats back in control of at least one chamber of Congress. Election night hangovers had hardly worn off by the time a pair of judges in Texas shot a Lone Star State sized hole in the Obama labor agenda by killing the Labor Department’s persuader rule and putting new overtime pay requirements indefinitely on hold. Just about everyone on all sides of the OT issue is still trying to decide what to do next.

There’s talk that lawmakers will wrap up for the year and head out on holiday vacation early to try to restart the clock on a pending Congressional Review Act challenge to the overtime rule. If Congress calls it a year less than 60 legislative days after the rule was published, Republicans can take another crack at stopping the regulation via the CRA once Donald Trump takes office. The Trump administration may also consider issuing a new regulation to roll back the rule. In the meantime, Seyfarth Shaw partner Alexander Passantino told Bloomberg BNA’s Tyrone Richardson that there could still be more court action before a new Congress is seated and Trump is sworn in.

“While it seems like we are super close to January 20, there’s a lot of litigation time in there and I would expect they will seek an appeal,” Passantino said, referring to the Justice Department lawyers representing DOL in the case. “What happens as part of that process will have a big impact come January.” Passantino served as the DOL’s acting Wage and Hour Division chief in George W. Bush’s administration. 

Thoughts about the next shoe to drop as the overtime debate goes into extra hours? Give us a shout over e-mail: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: We value all readers’ input, but in this case, we’d give significantly more weight to a response from team Trump on what happens next with the overtime rule. 

Add yours truly to the list of folks trying to determine how the dust will settle on this injunction. One option I’m told to keep an eye on – will the Justice Department and the DOL search for an intervening party to prolong the legal fight in the event Trump’s DOJ drops its defense of the rule? 

And about that “Obama-appointed” Judge Amos Mazzant, who thwarted what the president has hailed as one of his signature wage-boosting actions. Shame on all of us, myself included, for looking past GOP Sens. Ted Cruz and John Cornyn’s possible roles as judicial gatekeepers for federal bench slots in Texas. There’s been some talk that the duo had a hand in helping to arrange Mazzant’s spot on the federal bench. 

Looking ahead, it seems the only simple decisions are for employers at opposite ends of the spectrum. The Wal-Marts of the world that started complying three months ago are probably not turning back the clock and taking the PR hit of reversing manager raises. But let’s say you own Mom and Pop’s Diner in Sheboygan, and not only did your employees not know about the rule change, but you hadn’t finalized a compliance plan. Well, Judge Mazzant may have given you a lot to be thankful for last week.

Still, there’s a vast sea in the middle filled with business leaders who spent their holidays e-mailing with HR and legal departments to fine tune the exact wording of an employee-wide alert about the change of plans. 

I don’t think DOL and the worker advocacy leaders who supported this rule change will have much sympathy for the employers left scrambling by the judge’s decision. They see it as 4 million workers who were deprived of their overdue time-and-a-half by a rogue judge who misinterpreted the statute. 

CO: Meanwhile, the close of the year finds labor groups and Democrats searching for answers about the election results, and looking to chart a path forward with an eye to the 2018 ballot boxes. We’ll soon find out who’s going to steer the ship. House Democrats are slated to decide Wednesday whether to keep Rep. Nancy Pelosi (Calif.) on as Minority Leader. Challenger Tim Ryan (Ohio), who has promised to sharpen Democrats’ focus on working families, is considered a long shot to unseat her.

A battle is also brewing over the vacancy at the top of the Democratic National Committee. Will the DNC’s next chairman be Rep. Keith Ellison (Minn.), a Sanders-style progressive who casts something of a polarizing shadow in some traditional Democratic circles? Or will Labor Secretary Tom Perez, a Clinton ally and apparently the Obama administration’s preferred choice, get the nod? Committee members are expected to make a choice sometime before the end of March.  

Ben Penn: Trump transition appointments continue to roll in, so maybe this will be the week a labor secretary is chosen. And might newly appointed DOL landing team lead Loren Smith arrive at the Frances Perkins Building? As of last Tuesday, Smith was still answering the phone at his DC consulting firm office (politely pointing me to Trump’s transition office for comment). 

Washington chatter has been so focused on Trump’s Cabinet selections that an important labor opening is getting overlooked. One week after the president-elect is sworn in, there will be a vacancy at the top of the Bureau of Labor Statistics. The next BLS commissioner (the agency’s sole political appointee) oversees the monthly jobs report release, which includes the latest unemployment rate. Candidate Trump created controversy around the jobless measure by repeatedly calling the government figures “phony.” 

“The thing that actually worries me the most” about a Trump presidency “is the fact that the term of the commissioner of the BLS is coming to an end in January,” Jenny Hunt, DOL’s chief economist from 2013-2015, told me. “You want someone who is basically a technocrat to be heading BLS.” 

But after he equated the unemployment rate to propaganda, some economists are distressed that Trump would install a fringe figure to the commissioner post or defund the agency to limit the effectiveness of survey collections. 

That brings us to the BLS’s latest jobs report, set to be released Friday. Economists told Bloomberg they expect hiring to tick up slightly, with about 175,000 jobs added in October. That figure is consistent with other projections showing that the job market remains fairly tight

CO: Of course, Democrats and traditional labor unions don’t have the market cornered when it comes to advocating for workers. Bloomberg Law reporter Rhonda Smith reminded us that workers aligned with the Fight for $15 campaign are planning to launch protests in 20 cities across the country on Tuesday. Fast food, home care, airport and other employees are expected to stage marches, rallies and sit-ins timed to coincide with Fight for 15’s fourth anniversary. 

The campaign has been instrumental in getting wage hikes passed in some cities and in pushing some employers to raise pay rates. Still, it may see some closer scrutiny once the Trump administration starts running the show at the Labor Department. 

Fight for $15, OUR Walmart and Restaurant Opportunities Centers United and other worker centers are community-based groups that advocate on workers issues, but aren’t considered traditional labor unions. Critics argue that the groups act as “fronts” for unions designed to evade reporting requirements. Fight for $15, for instance, is closely aligned with the Service Employees International Union. Uncle Sam hasn’t yet forced the groups to file the Labor-Management Reporting and Disclosure Act financial disclosure reports required of traditional unions. But with a Trump DOL expected to keep a closer eye on union activity, a change may be in the cards. 

BP: That about wraps it up for now. 

Daily Labor Report subscribers can check back in with us during the week. Bloomberg Law’s Jon Steingart will be reporting on religious diversity issues in the workplace and some of the tensions that can arise come holiday season. Reporter Martin Berman-Gorvine will be exploring rules for holiday gift giving at the office. I’ll also be digging into that looming vacancy at the BLS. 

We’re punching out. See you here next Monday morning.

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