Punching In: The Pizzella Pause


PUNCHING IN

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn

DOL999

Where’s Pat? |The Curious Case of the Google Express Drivers | OFCCP Honey Do List

Ben Penn: When Pat Pizzella was nominated as deputy labor secretary five months ago, he surely envisioned showing up to work at the Frances Perkins Building before Thanksgiving. But alas, Pizzella will carve the turkey Thursday, only to then return to his same, inconspicuous job of heading the Federal Labor Relations Authority. 

Eyebrows were raised when mine safety head Dave Zatezalo leaped ahead of Pizzella in the queue by receiving a floor vote and confirmation last week. Folks began wondering if this delay for DOL’s would-be No. 2 official was related to Pizzella’s lobbying with Jack Abramoff, and not strictly a matter of finding space in a crowded legislative calendar. 

After conducting an unscientific poll of Hill sources and those who know Pizzella, I’m not convinced there’s any smoke here. A Democratic aide, who was unaware of any effort to spike his nomination, says a floor vote to confirm Pizzella may come next week. Others said Pizzella has long coveted the deputy secretary job and will wait as long as necessary, without contemplating a withdrawal.

Senate Majority Leader Mitch McConnell’s office declined to provide a timeline. Here’s something to keep in mind: Pat cut his teeth at DOL in the George W. Bush administration as a closely aligned deputy to Mitch’s wife, then-Labor Secretary Elaine Chao. The majority leader could do right by Chao, and by Labor Secretary Alex Acosta, to file for cloture and tee up a vote to bring Pizzella to the department before Christmas.     

The man holding down the fort, Nick Geale, did his best to showcase the department’s productivity without confirmed leaders when he addressed the Federalist Society’s National Lawyers Convention last week. But Geale, the acting solicitor and chief of staff, conceded to the obvious: The Senate could really help DOL, not to mention Geale‘s work-life balance, by voting on the pending nominees.     

“It hasn’t stopped us from getting a heck of a lot of things done, but certainly it would be very beneficial for our ability to quickly address really urgent issues,” Geale told the crowd. 

A few DOL officials in waiting happened to be at the Mayflower Hotel listening to Geale, who was joined by Acosta - and the chairs of the EEOC and NLRB - on a panel of heavyweights.  Among the former, current, and future DOL bigwigs I spotted at the Federalist Society’s annual event: Wage and Hour Division administrator nominee Cheryl Stanton, solicitor nominee Kate O’Scannlain (fresh off her confirmation hearing, flanked by her proud father, Judge Diarmuid O’Scannlain), WHD Deputy Administrator Bryan Jarrett, WHD Senior Policy Adviser Keith Sonderling, and, naturally, former solicitor Eugene Scalia

Also of note, new labor board member William Emanuel was sitting in the front row.

Chris Opfer: I plan to spend Thursday evening in a tryptophan induced haze, perusing the family bourbon collection and ignoring the Giants-Redskins game. Delivery drivers and shipping companies, meanwhile, will be getting ready for the busiest time of their years. The holidays mean lots of packages moving across the country. They may also bring renewed attention to labor and employment issues in the courier and delivery space. Drivers who deliver for FedEx, Amazon Flex, and other services have been at the center of litigation over who they actually work for and whether they’re employees or independent contractors. A new lawsuit in California from the Labor Department has us curious about how DOL currently views those issues.

The department last week sued a pair of delivery companies - TForce Final Mile West and On Courier 365 – that move packages for Google Express, the tech giant’s answer to Amazon. DOL says the companies misclassified drivers (some of whom wore Google Express uniforms) as independent contractors for minimum wage and overtime purposes.

What we don’t know about this case is more interesting than what we do know. The department under Acosta scrapped a pair of interpretation memos, in which the Obama administration took the position that most workers should be classified as employees and that joint employer liability for affiliated business should be applied broadly. This case could offer some insight into how DOL looks at those issues these days.

Department lawyers cited the same “economic realities” approach put forward in the Obama era memo in its misclassification claims against the companies. Does that mean they’re still using the Obama playbook? The type of control the companies allegedly exerted over the drivers – scheduling routes, setting hours, and using GPS to track drivers – may have been enough to create a traditional employment relationship no matter how you slice it.

Separately, the department appears to have decided - for now, at least - that Google isn’t on the hook as the drivers’ joint employer. Will that change once the case moves into the discovery stage? We’ll be following the litigation as it continues. 

BP: It appears all but official that Craig Leen is/will be the director of DOL’s Office of Federal Contract Compliance Programs. As Bloomberg Law’s Jay-Anne Casuga recently reported, the U.S. Chamber of Commerce already sent Leen its wide-ranging report on how to overhaul the federal contractor enforcement agency, ahead of his presumed arrival at the office.

The Chamber is far from the only group trying to set the contractor watchdog’s new agenda. 

The next OFCCP head also will have a host of policy recommendations from a riled-up federal contractor community, as anyone in attendance at an occasionally testy American Bar Association panel might have observed. When Consuela Pinto, a DOL deputy associate solicitor who oversees the OFCCP portfolio, spoke at a recent ABA labor and employment law conference, she promised the private attorneys who were criticizing OFCCP’s lack of consistency that she’d report their complaints back to her office posthaste. 

But Pinto cautioned the room that until a political leader arrives at OFCCP (this was before news of Leen broke), the agency can only do so much to fix the perceived enforcement muddle. 

Under the guidance of acting director Tom Dowd, the agency has begun collecting information to build a robust compliance assistance program. For the most part,“there’s real resistance to getting too much implemented and getting ahead of whoever the new political appointee will be,” Pinto said.

More than a year after the Government Accountability Office called for the OFCCP to fix how it selects companies for audits, much of the agency’s congressionally mandated response is still waiting on a new director.

“There are some things that the agency can do around the edges to implement those recommendations, but in large part we need a political in place to tell us how this administration wants to implement the recommended changes,” Pinto said.

Welcome to Washington, Mr. Leen. 

CO: Nothing says “Happy holidays” like a looming government shut down. This year, the holiday season comes with a Dec. 8 deadline for lawmakers to come up with an agreement to keep Uncle Sam’s lights on.

Remember all of that talk about moving federal spending bills via “regular order,” when President Donald Trump took the oval office and Republicans gained control of both chambers of Congress? That was quickly replaced with funding measures that kept most appropriation levels in place and which were supposed to clear the decks for the White House and Republicans to really get down to business on cutting wasteful spending. If history is any guide, the smart money is on Congress kicking the can yet again with a short-term funding patch to keep the government funded into the new calendar year. 

The delays have little to do with party politics. It’s simply the way things are at the Capitol of late, no matter who’s in charge. Doing big government spending bills is difficult. Easier to wait until  the last minute, pass a short-term patch, and then wait til the last minute to do it all over again.

Mark your calendars.

BP: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. Bloomberg Law’s Jon Steingart tells us a fair scheduling law for fast food workers is set to take effect in New York City this weekend. HELP Committee Chairman Lamar Alexander (R-Tenn.) told Tyrone Richardson recently that the Senate is likely to take up the joint employer bill passed in the House instead of moving a separate version in the chamber. We won’t hold our breath for that to happen. Meanwhile, Martin Berman-Gorvine is wading into the murky territory of “lies” versus “embellishments” on resumes.

See you back here next Monday morning.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate, and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform.  Click here to request a free trial.