Punching In: Overtime and the EEOC-NLRB Conflict


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Overtime Deadline | EEOC Member Dishes on NRLB | Miscimarra Looks for Clarity

Ben Penn: The endless saga of the Labor Department’s overtime rule soon enters its next phase. The public comment period -- likely to frame a new regulation – closes in a week. The request for information deadline is Monday, Sept. 25, at 11:59 p.m. – as the D.C. trade association community is distinctly aware. 

Those of you procrastinators lucked out because your comments can now incorporate the recent surprise decision out of Texas. When a federal judge shot the rule down, the department decided to drop its appeal of an earlier decision that put the new requirements on hold.

So where does that leave us? The legal uncertainty is dissipating over whether the labor secretary has the authority to use salary, rather than strictly duties, as the basis for determining whether an employee is exempt from time-and-a-half pay. The focus turns mostly to how high the salary threshold be. (If you ask the former labor secretary nominee, Andy Puzder, as I did last week, the answer is $30,000-$35,000.) 

But at least one well-known business group may not be ready to say goodbye to a duties-only test and has submitted a comment asking Secretary Alex Acosta to be judicious before leaping to the conclusion that a salary test is statutorily appropriate. The National Federation of Independent Business recommended Sept. 1 that the DOL should check with the Justice Department before proposing a rule with a higher salary level that makes more workers eligible for overtime pay. NFIB, which represents the small business community, doesn’t specify whether a salary test is inappropriate, but in laying out the arguments, it seems to suggest that leaving pay out of the process and relying solely on a workers’ duties may be the safer legal route. 

Most of the influential stakeholders on this topic appear to still be crafting their comments, per my glance at the comments. But the American Federation of State, County, and Municipal Employees did weigh in, just last week, urging  DOL to adopt the same $47,500 salary test finalized under Obama. 

Good luck with that. 

What about the other unions and worker advocacy groups – will any of them pitch a number to Acosta that’s a bit lower than $47k, as a more realistic opening bargaining stance? 

Chris Opfer: Some recent cases out of the National Labor Relations Board are testing the boundary between a worker’s right to free and open communication and a worker’s right to be free of workplace harassment, as specified in federal employment discrimination law. The board, for example, recently said Cooper Tire wrongly fired a striking worker who shouted racist slurs from the picket line at replacement workers. The problem with that is some courts have found that just a single use of a racial slur can be enough to make a workplace hostile.

Equal Employment Opportunity Commissioner Chai Feldblum (D) waded into this murky territory last week. I had a back row seat at Epstein Becker & Green’s annual labor and employment briefing.

Feldblum told the group that the EEOC will soon issue training materials on civility and harassment in the workplace. Feldblum also said that she and Commissioner Vicky Lipnic (R) have been trying since before the election to partner with the NLRB to come up with some sort of joint guidance on the issue. 

"It’s become clear to us that there had to be some coming together between the EEOC and NLRB," Feldblum said. "You cannot expect employers to be operating with that type of lack of clarity."

Feldblum said she "can't at all predict" whether the NLRB would be willing to weigh in via some sort of joint statement. But there’s still a way to thread the needle between the federal laws that the agencies enforce, respectively.

“The reality is that you can read the NLRA in a way, I believe, to still permit a significant amount of leeway to say, this, this and this will not be OK in the workplace,” Feldblum said. “This is not a conflict that is impossible to reconcile or that you somehow need Congress to rewrite a statute, no."

NLRB Chairman Phil Miscimarra (R) took the stage hours before Feldblum. He didn’t address the harassment issue straight on, but he did go into some detail on employee handbooks and workplace policies that businesses could potentially use to limit offensive behavior on the job. More on that in a minute.

BP: We continue to wait for the DOL to fill in the details on the apprenticeship initiative. Yes, it’s been just a few months since Trump signed the executive order to expand apprenticeships, and Acosta is still getting staffed up. 

But given the secretary’s devotion to this project, a little impatience may be justified.

The apprenticeship plans were on the agenda when Acosta’s chief of staff Nick Geale addressed business owners at the International Franchise Association annual meeting last week. Geale, a last-minute replacement for his boss at the event, teased the crowd to expect the release of apprenticeship guidance in the “coming weeks.” When an attendee asked him for more specifics on the timing, Geale’s reply amounted to “stay tuned.” 

CO: Miscimarra is set to ride off into the sunset – probably back to Chicago – when is term on the board ends later this year. He told the crowd at last week’s event that his “biggest regret” during his time on the board is that the NLRB has made it tougher for employers, unions, and workers to clearly understand their rights and obligations under the law. He said the board has made it tough for even its own members to distinguish between reasonable limits on workers' behavior and employee handbooks or policies that cross the line into unlawful infringement on employees’ right to collective action and to discuss the terms and conditions of their jobs. 

Miscimarra pointed in particular to the standard set by the board in 2014 in Lutheran Heritage and later affirmed in William Beaumont Hospital. The NLRB in those cases said a policy that appears neutral may be unlawful if a worker can “reasonably construe” it to limit his or her rights under the National Labor Relations Act. But Miscimarra listed a litany of decisions that he said have made it impossible to draw the line.

“If it is unlawful to have a requirement, no loud, abusive or foul language, then why would it be lawful – as the board has found – to prohibit abusive or threatening language to anyone on company property?” Miscimarra said. “If it’s lawful – if it’s OK – to have as a requirement no conduct which is injurious, offensive, threatening, intimidating, coercing or interfering with other employees, why would it be unlawful to prohibit false, vicious, profane, or malicious statements concerning an employer or any of its employees?”

BP: We’re punching out. Daily Labor Report subscribers can check in during the week, which is shaping up to be a busy one for the EEOC. The Senate HELP Committee on Tuesday will take up Janet Dhillon and Daniel Gade’s nominations for EEOC member spots. Meanwhile, Bloomberg Law's Patrick Dorrian tells us the agency has until Thursday to tell a federal judge in D.C. how/when it will go about re-reviewing its employee wellness rules. 

Bloomberg Law’s Jay-Anne Casuga will be reporting tomorrow from the Office of Federal Contract Compliance Programs town hall meeting on compliance assistance, and Jacklyn Wille will be comparing the Trump-era Employee Benefits Security Administration’s performance with prior administrations.   

See you back here next Monday morning.

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