PUNCHING IN: Shutdown Watch, DOL Waiting Game

Punching In

Monday morning musings for workplace watchers


By Chris Opfer and Ben Penn

Trump-Congress-Shutdown | Uncertainty on Acosta | State v. City in Texas

Chris Opfer: Pro Wrestling announcer Mean Gene Okerlund is fond of saying that “close only counts in horseshoes and hand grenades.” The smart money may be on lawmakers coming together on a short-term funding patch to keep the government open before the money runs dry on Friday. Still, that’s not a done deal until President Trump puts pen to paper.

The deadline ironically comes one day before Trump’s 100th in office. The Trump administration’s approach to labor and employment policy is still cloudy at best. That’s because Labor Secretary nominee Alex Acosta hasn’t been confirmed by the Senate and Team Trump still has two open National Labor Relations Board seats to fill. 

The president has signed resolutions to undo a handful of Obama-era initiatives and said he’d like to see DOL’s funding cut by 21 percent. We still don’t know exactly where the belt-tightening might happen or how the administration intends to approach big ticket questions on overtime, the fiduciary rule and joint employer liability, among others.

Congress has mostly been playing the waiting game. Tyrone Richardson has a story in today’s Daily Labor Report looking at what’s ahead for lawmakers when they get back from Spring Break later today. The condensed version is that the House is likely to mark up a GOP-backed comp time for overtime bill, while the Senate will consider whether to block a rule allowing states to offer retirement plans for private workers. Both sides will also continue to debate bread and butter issues like minimum wages and paid leave. Although Republicans will certainly flirt with using appropriations riders to rein in the NLRB, that strategy probably doesn’t have much legs. 

What are you expecting from the White House and Congress? Let us know at copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: The Trump administration is likely to reach day 100 without a confirmed labor secretary. Alex Acosta’s battle with a jam-packed Senate calendar will continue a few more days. I’m told the first week in May is the new target, assuming they first figure out a plan to keep the government lights on.

The Puzder fiasco combined with other distractions on Capitol Hill make this an historically long delay at DOL. 

Among the last eight transitions of elected presidents, Barack Obama’s first DOL leader Hilda Solis assumed office at the latest point in the calendar – Feb. 24, 2009. Six of the remaining seven secretaries were installed in January, a few days after the boss’s inauguration. 

I’m told Acosta has been working to make up for lost time by interviewing candidates for top positions during the downtime. 

But there are still bureaucratic hurdles to staff up quickly in the opening months after he’s confirmed, as expected. With that in mind, one thing to keep an eye on is whether the career officials running the subagencies in an acting capacity get replaced swiftly by acting political appointees. Thus far, Nick Geale in the solicitor’s office is the only acting political director, not including the temporary beachhead team.  

CO: Plenty of folks expect that some of the trickiest legal and regulatory issues related to the gig economy will get worked out in the states, rather than D.C. That could create some conflict between state and local governments, like the one playing out in Texas right now.

Bloomberg Law’s Jon Steingart reported last week on a bill winding its way through the Lone Star State legislature that would void city ordinances in Austin and elsewhere that require Uber and Lyft to do fingerprint-based background checks on drivers. The measure is seen as a way of coaxing rideshare companies back to Texas’s capital city after they pulled out in a huff over the issue last year.

The debate is similar to the one that played out in North Carolina over the bathroom bill. State lawmakers passed legislation limiting bathroom choice after Charlotte enacted a city ordinance allowing public workers and others to use the bathroom that corresponds with their gender identities. 

The Texas ridesharing bill shines a light on the diverging political views of Austin’s city council and its neighbors in the Texas State Capitol. Interestingly named state lawmaker Paul Workman recently floated a measure to stop Austin’s “ban the box” ordinance limiting criminal history inquiries in the hiring process. I’m told he’s also considering a bill that would block Austin from requiring contractors who want to use an expedited permitting process to agree to offer enhanced pay rates, benefits, training and safety protections to their workers.

BP: When I learned last week that business groups are growing uneasy about Acosta palling around with a union-connected lobbyist, I was initially surprised. Why all the fuss? It makes all the sense in the world for Acosta to trust a good friend for pre-confirmation advice when said buddy was chief of staff for the prior GOP labor secretary. And Siff’s work for unions is primarily on regulatory compliance. 

But the employer-side distrust is less about Siff and Acosta, and more a function of natural anxiety created by the extended administrative silence on labor issues. Outside of guestworker visa reform, the operative phrase I’m hearing around town about the DOL’s new agenda is “I don’t know.” 

Acosta is a more traditional GOP Cabinet pick than Puzder, but lacks the newly retired CEO’s public record of railing against Obama labor initiatives. Plus his evasiveness in the confirmation process means we’re all continuing to wait to learn where he stands. 

In time, the trade associations will try to forge a positive relationship with Acosta. Maybe we’ll look back on their 2017 stress as ridiculous. They just need to get in a room with him one-on-one first.

CO: Now’s about the time we punch out. Daily Labor Report subscribers can check in with us during the week for updates on Acosta, Congress and the courts. We’re looking forward to a fascinating story from Jacklyn Wille on ERISA litigation against health insurance companies that refuse to cover “wilderness therapy” treatments. We didn’t know what wilderness therapy is either. Martin Berman-Gorvine also has us keeping an eye out for his story on the future of independent contracting.

See you back here next Monday morning.

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