Punching In: Robb, Reagan, and the NLRB

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By Chris Opfer and Ben Penn

Monday morning musings for workplace watchers

Paging Don Dotson | Wage and Hour Watch | Digging Into Infrastructure

Chris Opfer: You may have already heard that John Ring’s Senate confirmation hearing was postponed to March 1. I’d put that date in pencil. Even if Ring does go before the Health, Education, Labor and Pensions Committee next month, the NLRB may be waiting a while for its crucial fifth member to be confirmed. In the meantime, there’s plenty of intrigue out of NLRB General Counsel Peter Robb’s office to keep us busy.

A group of 56 former regional directors recently reached out to advise Robb against his controversial proposal to reorganize the NLRB’s regional and field office setup. Any move to strip current regional chiefs of their senior status, consolidate offices, and install a handful of supervisors with a direct line to Robb could limit the agency’s public outreach efforts and raise civil service legal issues, and might not save the board much money, the RDs said. The group for former NLRBers spanning back to the Nixon era also pointed to Reagan administration NLRB Chairman Don Dotson’s efforts to tinker with board processes in the ‘80s as a “cautionary tale.”

Dotson is on lots of people’s short list for most polarizing figure in the history of the labor board. Some Democrats blame him for ushering in the partisan swings in board precedent that often come with a new administration. Dotson was chairman when the NLRB voted for a resolution to give the board’s solicitor more input into how agency lawyers from the separate general counsel’s office defended appeals of board decisions. The board began overturning precedent from the Jimmy Carter era—Democratic majority decisions that could be said to have their own political bent—shortly after he was confirmed for the job. Dotson didn’t feel that then-General Counsel Rosemary Collier was fully committed to defending those decisions when unions or employers appealed them federal court.

“I went to a couple of oral arguments and it was pretty pathetic,” Dotson, who went into private practice after leaving the board and retired in 2003, told me of the appeals cases. “They often sent a very junior attorney to argue a controversial or important case, which is a pretty strong signal to a judge.”

The appeals oversight move ruffled all kinds of feathers, in much the same way that Robb’s proposal is causing a bit of a stir. Although Dotson’s resolution eventually “withered on the vine,” he said it was useful in that it put agency staff on notice that the board was expecting them to get with the new program. Robb worked for the board at the time as counsel to former member Robert Hunter, who supported Dotson’s proposal.

Ben Penn: It’s been a year since Donald Trump nominated former prosecutor and law school dean Alexander Acosta as his labor secretary. And yet Acosta is somehow still waiting for the Senate to confirm his No. 2 and arguably his two most important enforcement heads, at the Wage and Hour Division and the Occupational Safety and Health Administration. I took the temperature among folks with a line on two of those nominees, Pat Pizzella for deputy secretary, and Cheryl Stanton for WHD. The word is they’re both still all-in as the holding pattern continues.

(If I’m Stanton, who’s running a South Carolina employment agency, summer in the Palmetto State would start to sound mighty serene. After all, if she moved to that other swamp up north, Stanton would inherit a division already under an OIG investigation. But I digress.) Pizzella has the Frances Perkins Building in his blood and some unfinished business from his days as Elaine Chao’s right-hand man at DOL. My gut tells me he’ll tough this one out until the waning months of the administration if he has to.

The deputy secretary’s position might be higher up in the department’s organizational chart, but some in the business community are placing a greater priority on Stanton’s confirmation for WHD. Beth Milito, senior executive counsel at the National Federal of Independent Business, told me the landing of a WHD chief is perhaps the most critical issue facing the small business community in terms of labor and employment. The sentiment is that a permanent, Trump-appointed administrator will at long last rein in the field investigators said to be still applying Obama-era tactics when they police companies for minimum wage and overtime violations.

Word is that the two political appointees at WHD, acting head Bryan Jarrett and policy adviser Keith Sonderling, may be ready to implement more enforcement changes, even while Stanton’s on stand-by. The WHD tweaked enforcement guidance in January via updates to the field assistance bulletin to revise policies on when interns and car dealership service advisers are due overtime pay.

Don’t be surprised if new field bulletins are forthcoming as the administration continues to place its stamp on wage-hour policy. That’s not to mention those long-awaited opinion letters that business representatives have been clamoring for since the Trump administration took control of the Labor Department.

I won’t declare what I think WHD will tackle next, but here’s your reminder that the secretary’s old friend Marco Rubio did recently ask for clarity on whether home care aides who work through a registry are employees or independent contractors. That may sound like a narrow issue, but a policy statement on that topic could have big implications for how this administration may address the Obama DOL’s priority of rooting out what it deemed misclassification—calling employees independent contractors—in multiple industries.

CO: I’m headed out to the desert later this week to talk about the future of work. I’ll be at Arizona State University’s W.P. Carey School of Business talking about gig work with a group that includes folks from Lyft and TopCoder. Gigs have gotten a lot of attention as the modern way of making ends meet. But there are still more questions than answers when it comes to the legal issues surrounding gig workers.

A California federal judge’s recent decision in a case involving a GrubHub delivery driver has been marked as a bellwether. I’d call it one port in a storm.

The judge said GrubHub properly classified the driver as an independent contractor, not an employee. Uber, Lyft, and a wide range of other gig companies also treat drivers, delivery people, home cleaners, odd job performers, and other gig workers as contractors. But just because one judge said it was OK in one case doesn’t mean those companies are out of the woods yet. The California Labor Commissioner and an administrative law judge in New York are among those who have said Uber drivers are employees. The distinction matters, of course, because employees get minimum wage and overtime protections, have the right to organize, and are covered by workers compensation and unemployment insurance benefits programs.

The NLRB may have something to say about the issue too. The board recently unveiled a two-year-old advice memo finding that Postmates misclassified its food deliverers as contractors. That case was ultimately dropped and the folks who were running the NLRB general counsel’s office and the Advice Division at the time have since flown the coop.

Meanwhile, the Labor Department is set to release the results of an updated contingent worker survey in the spring. We’ll see if that gives Congress any sort of incentive to start taking a closer look at the classification question.

BP: Infrastructure week didn’t exactly land as the White House would have hoped last week. So let’s give it another try as this week begins with fewer distractions as Congress is out on a President’s Day recess.

Secretary Acosta issued a press release last Monday that connected the president’s $200 billion infrastructure proposal to the DOL’s ongoing efforts to “close the skills gap and overcome licensing barriers to fill open, family-sustaining jobs.”

Depending on what’s included in a potential bill to rebuild the nation’s roads, bridges, airports, etc., the DOL can play a significant role. Acosta hasn’t discussed the issue in much detail, but it’s still early.

Some DOL watchers will be happy to hear that the DOL’s Employment and Training Administration is still on track to release a proposed rule designed to upscale apprenticeship programs by removing the red tape from the registration process. Those rules were slated for release last month, meaning they could be out any day.

Whenever that apprenticeship proposal comes out, Acosta will likely be reminding us that this is all part of the broader plan to ensure that the next generation of workers has the skills needed for the demanding construction jobs that infrastructure spending would foster.

As we learn more about what this legislation will entail, the murmuring will return on whether the administration wants to touch the Davis Bacon Act. Trimming prevailing wage requirements on federal construction work would please conservative types who say Davis-Bacon makes projects too expensive. But it would also risk alienating Trump’s base from the building trades who say the requirements ensure fair pay.

“I would not be surprised if the President left the Davis-Bacon Act alone on the surface,” said Eric Crusius, a Holland & Knight partner representing businesses that bid on public contracts. “Instead, DOL could divert resources away from enforcement.”

CO: 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@bloomberglaw.com and bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

This week Bloomberg Law’s Patrick Dorrian has the latest on a medical marijuana disability discrimination case that could break new ground. The fiduciary rule is in some sort of semi-limbo, but that’s not stopping regulators in Massachusetts from suing one large financial services firm to enforce the rule’s conflict-of-interest restrictions for retirement brokers. Jacklyn Wille is keeping a close eye on the action in the Bay State. Newsflash: Chief Diversity Officers are a thing, at least at some modern workplaces. Are they making any waves? Martin Berman-Gorvine is taking a look.

See you back here next Monday.

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