PUNCHING IN: President Trump, Puzder Watch

Punching In

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


President Trump| Puzder Hearing Push Back| Another Appeals Court Mulls LGBT Bias

Chris Opfer: On Friday, Donald John Trump will be sworn in as the country’s 45th president. Change is coming to the relationship between business and government, but just what sort of moves the Trump administration will make toward freeing up employers and spurring hiring activity remains to be seen.

Here’s what Trump told reporters during a lively press conference last week:

“We’re going to create jobs. I said that I will be the greatest jobs producer that God ever created. And I mean that, I really — I’m going to work very hard on that. We need certain amounts of other things, including a little bit of luck, but I think we’re going to do a real job. And I’m very proud of what we’ve done.”

Trump enters the White House with questions still swirling about potential conflicts of interest stemming from his own business empire. That includes an unprecedented rebuke from the traditionally tight-lipped Office of Government Ethics. 

Any thoughts on what conflicts might flare up on the labor and employment front? Invites to inauguration parties? Places to hide out when all of the pomp and circumstance gets to be too much? I’m partial to Ivy & Coney myself, but suggestions are welcomed. Hit us up at copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: I’m still trying to wrap my head around that job creation quote – that should’ve led the news coverage on the presser. Trump didn’t mention the man he’s trusting to lead the agency that plays a big role in job creation: Andy Puzder. 

My Google-alert hits on “Puzder” reached a crescendo last week. Between dueling surveys of his company’s workers, a Senate hearing delay, nationwide protests, and Elizabeth Warren (D-Mass.) hosting a “shadow hearing,” there was no shortage of media attention on the effort to either derail or ease his confirmation. This was supposed to be the week Puzder would have truly had his turn in the spotlight, were it not for the Jan. 17 hearing getting postponed until sometime in the next month or so. That raises the question of whether a delay benefits Puzder by letting the media hits cool off as he continues to prep for his first foray into government service. Or might the extra time expose some unknown vulnerability?

We hear that despite the delay and a recent story about his ex-wife’s decades-old Oprah appearance, the Puzder camp is still going full steam ahead in laying the groundwork for his transition to power at the Perkins building. There’s no sign yet of any defections among the GOP Senate majority. Democrats told us on the Hill this week that they’re eager to use the extra time to dig deeper into the CEO’s private sector and personal background. Rep. Keith Ellison (D-Minn.) called on the press to take a closer look at the burger magnate (Keith, come on, I’m overworked as is!). 

Rep. Mark Pocan (D-Wis.), who sits on the House labor committee, gave me his thoughts on the delay: “Whenever you have a hearing lined up and you pull it back, that’s not a good sign. That means you in some way don’t have your presentation ready and either you’ve got a flawed package or a flawed ability to put a candidate forward. So I think this is good, and we’ll just keep digging into this guy’s past.”

For what it’s worth, the official explanation from HELP Republican leadership is that Puzder’s hearing was pushed back because Education nominee Betsy DeVos’ hearing was moved to Jan. 17. So there’s that.

CO: Just around the time Trump takes the oath of office, a panel of judges in Manhattan will grill attorneys in the ongoing debate over whether the federal ban on sex discrimination in employment extends to sexual orientation bias.

The Second Circuit will be the third federal appeals panel to take up the issue. The Seventh and Eleventh circuits have yet to reach decisions since hearing oral arguments in separate cases. The Second Circuit case involves a marketing firm worker who said a manager harassed him because he’s gay. I’ll be there to see what the judges in Manhattan make of that arguments.

BP: As DOL political appointees pack their bags this week, don’t be so sure their minds have shifted entirely to the next gig. Jay-Anne Casuga alerts us to be on the lookout for an uptick in government lawsuits – perhaps politically motivated – before the Trump administration can install its own agency heads. The Office of Federal Contract Compliance Programs in particular could have a few tricks up its sleeve. 

Political appointees hog all the headlines, making it easy to forget that most DOL employees are career civil servants who take the department’s mission to protect workers seriously. Puzder says that will be his vision, too, if confirmed. But according to Justin Swartz, who held a leadership role in the private wage-and-hour plaintiffs’ bar for most of this decade, career government employment attorneys are already plotting their exit in the event they don’t see eye-to-eye with new political leadership. 

“We’ve had lots of inquiries from people in various employment related agencies,” Swartz told me of his firm Outten & Golden, which just nabbed ex-EEOC General CounselDavid Lopez. Calling on all civil servant labor and employment attorneys and investigators with a tale to tell about why they’re staying or leaving – I’m a very good listener.

CO: That’s all for now. Daily Labor Report subscribers can check back in with us during the week for Jon Steingart’s rundown of the latest round of briefings in the overtime case. Bloomberg Law’s Martin Berman-Gorvine is also taking a look at the battle of culture vs. perks as employers fight to retain their workers.

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

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