Punching In: Overtime October Surprise


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Overtime Plot Thickens | Goodbye Mr. Griffin | #MeToo Comes to Congress

Ben Penn: Just when you thought the lease on the Obama administration overtime rule was finally going to expire this week, turns out the pesky regulation is still squatting on Trump territory.

The previous administration’s top wage-growth initiative – to expand overtime access to some 4 million Americans – will live to see another day. By the time you read this, the news first reported in Bloomberg Law Friday thatDOL will appeal a judge’s order to invalidate the rule, may become official. If not, I’m told it will happen by end of day today.

What we have here is the latest instance of a labor secretary demonstrating his unwillingness to wade into murky legal territory. Despite the pleas of Richard Trumka and others that Labor Secretary Alex Acosta use this opportunity to stand up for workers by defending a $47,000 salary threshold for overtime exemption, the DOL has consistently implied that it wants a lower level. 

But until we get a new rule, which the department hopes will render the litigation moot, the secretary has actually won himself some decent optics by demonstrating his adherence to the rule of law. 

The Texas judge’s reasoning to kill the rule put into doubt whether any administration, Republican or Democrat, can ever use a worker’s salary to determine time-and-half qualifications. Judge Mazzant’s holding was surprising, and according to some, deeply flawed. 

Acosta’s new regulation may wind up disappointing unions, Democrats, and Obama DOL officials. But if his litigation strategy succeeds, everyone can still thank him for helping to ensure all labor secretaries in perpetuity are able to use their rulemaking authority to update the overtime salary level.

Chris Opfer: NLRB General Counsel Dick Griffin’s (D) term ends tomorrow, right around the time I’ll be dazzling neighborhood trick or treaters with my labor-board-themed Halloween costume. I plan to don this Grimace outfit and carry an oversized phone in a nod to the Purple Communications decision. 

As for Griffin, he oversaw a number of shifts in labor law during his four years as the board’s top lawyer. That includes controversial moves to expand joint-employer liability, bolster labor organizing on college campuses and scrub employee handbooks. Whether they agree or disagree, workplace policy experts have a lot to say about the Griffin era. Here’s what a few told me (everyone said he’s a good lawyer):

  • Sharon Block (D), former NLRB member: “I think Dick Griffin was exactly the General Counsel that American workers needed at this time. He was committed to making the tools that the Act provides to give workers a voice in their work lives as relevant and meaningful as possible – even more than 80 years after the Act passed.”

  • Randy Johnson, Chamber of Commerce labor chief: “I give him credit for coming up with ways to twist labor law in favor of unions. The view of practitioners is that he radically revised the labor laws over his tenure there.”

  • Craig Becker, AFL-CIO general counsel: “Dick Griffin has made a historic impact as General Counsel of the NLRB. He has not hesitated to enforce the law even in the face of extraordinary attacks as from the franchise industry after he authorized the issuance of a complaint against McDonalds alleging it jointly employed the employees in its restaurants.”

  • Dennis Devaney (D), former NLRB member: “Griffin was much more willing to take on long-standing polices and precedents than others. They probably pushed the envelope in a way that was more philosophy driven than is generally the case.”

  • Nicole Berner, SEIU general counsel: “General Counsel Griffin made the NLRA responsive to the modern workplace, holding major corporations like McDonald's accountable for its control over the fate of workers at its franchisees; and stopping corporate abuse of the mandatory arbitration procedure by banning class action grievances in Murphy Oil.”

  • Michael Lotito, Littler Mendelson: “Mr. Griffin demonstrated just how powerful the NLRB GC position actually is. He will be remembered as one of the most progressive GC's in the history of the NLRA.”  

Peter Robb, the Vermont management tapped to replace Griffin, is still waiting for Senate confirmation. How quickly he starts working to undo many of Griffin’s moves remains to be seen.

BP: Robb is stuck in a bit of Capitol Hill gridlock, joined by a horde of nominees from the Big Three labor and employment agencies who are also waiting to hear Mitch call their names.

Considering Majority Leader McConnell recently made a point of praising Trump’s NLRB appointments as a measure of White House productivity, I suspect Robb may take top priority. Sorry Pat Pizzella, we know you’ve been waiting your turn longer, but the next board general counsel has the fate of McDonald’s in his hands.

Pizzella awaits a full Senate vote to be confirmed as deputy labor secretary, along with nominees for two other DOL agency heads and a pair of EEOC members. 

For those hopeful that the arrival of more political officials at DOL will allow the agency to make up for lost time, remember that some of the new policy and regulatory plans can’t really swing into action until a solicitor of labor is confirmed. More than a month after she was nominated for the job, Kate O’Scannlain isn’t on the Senate committee hearing calendar, despite having her ethics paperwork completed.

Under Obama, WHD chief David Weil and Solicitor Patricia Smith managed to advance a robust agenda by working closely together.

So let’s say Cheryl Stanton is confirmed as WHD administrator next week. Her hands may be tied if she has no solicitor in the early going.  

“It just means some issues may be deferred until we see what the solicitor wants to say on this topic,” Alfred Robinson, the acting WHD administrator under President George W. Bush, told me. “I think the one benefit though is we have a secretary of labor who is well versed in labor and employment issues.”

Robinson, now at management firm Ogletree Deakins, offered some kind words for the secretary, and also a vote of confidence that with acting solicitor Nick Geale on hand, the DOL can remain functional. Acosta is the type of cabinet leader who wants to roll up his sleeves and read each and every brief and policy document. But to run this bureaucracy smoothly, the secretary – and all of his agency heads for that matter – need to work hand in hand with O’Scannlain. 

CO: To say that the Harvey Weinstein saga is shedding new light on allegations of sexual harassment in the entertainment and media industries is an understatement. The seemingly endless stream of news reports and the #MeToo social media campaign are raising new questions about how to stop harassment in Hollywood and beyond. As Bloomberg Law’s Hassan Kanu recently reported, some lawmakers want to make sure Congress is doing all it can to protect members and staffers on Capitol Hill.

At some point this week, we expect Rep. Jackie Speier (D-Calif.) to introduce legislation that would update a sexual harassment policy in Congress that she recently called “embarrassing.” Speier’s main beef is that she says the system requires a person who has been victimized to undergo counseling and wait as long as 30 days before filing a complaint. She wants to speed that process up and require regular “climate surveys” to gauge Capitol workers on harassment in their workplaces. The measure is quite likely to get lots of attention in the coming days. What we don’t know is whether it will also get an actual floor vote.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. Patrick Dorrian will be in the courthouse Wednesday when the Supremes take up the debate over how long a worker who has federal discrimination claims dismissed by a district court can wait to file state claims in a state court. Jaclyn Diaz is looking at diversity – or the lack thereof – in union leadership ranks. Martin Berman-Gorvine is digging into office romance in a post-Weinstein world.

See you back here next Monday morning.

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