PUNCHING IN: Three Court Battles and a Big Immigration Question


Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


More Murphy Oil | Overtime Action in Texas | Death to DACA? End the NLRB?

Ben Penn: The National Labor Relations Board filed a brief last Wednesday in the landmark Murphy Oil Supreme Court case, and this week the board will receive some needed support from workers’ side friend-of-the-court filers. Both the plaintiff and management bars, as well as unions and employers across the country will be watching.  

Wednesday marks the deadline for amicus briefs on the side of the NLRB’s position that mandatory arbitration clauses preventing class and collective litigation are barred by the National Labor Relations Act. The future of private enforcement of labor and employment laws hinges on the outcome. 

In case you forgot, the Justice Department reversed course in June and now opposes the board on this matter. Oral arguments are set for Oct. 2 and should be a doozy considering they promise a showdown between NLRB General Counsel Richard Griffin and Trump administration attorneys. 

Back to briefs, 10 international unions, along with the National Employment Law Project, and the National Employment Lawyers Association, are filing together, according to Altshuler Berzon partner Michael Rubin, who’s handling the writing. A separate coalition of civil rights groups is working on a brief of its own. 

“The reality is, this is the last best hope for preventing employer overreaching by using their overwhelming bargaining power to force workers to sacrifice basic workplace rights. So it is critical,” Rubin told me. 

I’ll be taking a deeper look at what’s at stake for the plaintiffs’ bar later this week. 

Reckon these briefs will affect the outcome of this case? Let us know at copfer@bna.com and bpenn@bna.com or on Twitter: @ChrisOpfer and @BenjaminPenn. Let us know at copfer@bna.com and bpenn@bna.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Chris Opfer: There’s another court battle brewing down in Sherman, Texas. Federal judge Amos Mazzant put the Obama overtime rule – expected to make 4 million or so workers newly eligible for time-and-a-half pay – on hold late last year. Or at least most of us thought he did. Mazzant issued an injunction blocking the Labor Department from “implementing and enforcing” the rule. 

A creative group of worker advocates is arguing that Mazzant’s decision doesn’t stop them from demanding more pay under the new overtime requirements. The group represents a Chipotle worker suing the fast casual restaurant chain for failing to abide by the Obama-era rule. The regulation makes those earning less than about $47,000 automatically entitled to time-and –a-half pay for all hours worked beyond 40 a week. 

That lawsuit is in New Jersey, but Chipotle wants Mazzant to hold the lawyers behind the suit (Cohen Milstein Sellers & Toll; Outten & Golden; and Green Savits) in contempt in Texas. Mazzant was scheduled to consider the request on Thursday. The hearing was recently pushed back to late September. 

Chipotle says the Jersey lawsuit reflects a “dismissive attitude” toward Mazzant’s ruling and a “disregard for the sanctity” of the judge’s injunction. Joseph Sellers, a partner at Cohen Millstein who’s representing the worker, told me shortly after the motion was filed that the Chipotle beef should be resolved in the Garden State.

“I’ve never before had a situation where the response is not to defend the merits of the claim in this jurisdiction, but to go to another jurisdiction and argue that we are in contempt,” Sellers said. “That Chipotle chose to take this course of action appears to be an effort to intimidate our client.”

BP: Meanwhile back in D.C., even if the Senate had managed to squeeze in a vote on Pat Pizzella for deputy labor secretary before the recess, the Labor Department would still be trying to function this summer with a shorthanded, overwhelmed political team. The word around town is that Secretary Alex Acosta and his aides simply don’t have enough manpower and time to address all the decisions in the queue.

Some personnel choices have been made, but White House vetting continues to prolong the process and prevent formal nominations. In the meantime, the DOL leadership webpage includes 36 vacancies for key slots across the department. Acting career officials held over from the Tom Perez days are, for now, tasked with fulfilling the Acosta, Trump agenda. 

The slowness of the DOL transition appears to be affecting day-to-day operations at the solicitor’s office. The attorneys under the watch of acting political appointee Nick Geale are hard at work reviewing administrative law options on the overtime, fiduciary, and other Obama regulations. Perhaps that’s left no time to consider whether to change positions on an important lawsuit out of the DOL’s Southwest regional office that continues to carry out previous Wage and Hour Division chief David Weil’s “fissured workplace” priorities. 

Last September, DOL sued Oklahoma janitorial company Jani-King, alleging the company’s business model unlawfully classifies direct employees as independent franchise operators. In June, a federal judge dismissed the lawsuit with prejudice. But rather than let the case die, the department informed the 10th Circuit earlier this month that it would be filing an appeal. Geale is one of the attorneys whose name is on the court notice. Whether he intended to or not, the chief legal officer at Trump’s DOL seems to be advancing Weil-ian principles on franchiser liability. 

Before, we depart, a few DOL personnel updates:

  • Curtis Ellis: I’m told the controversial former World Net Daily columnist is no longer serving as the de facto acting head of the Bureau of International Labor Affairs. As a refresher, I spilled a bit of ink on Ellis last May. Last we heard, he was on an early flight home from Germany before he could be seen on the world stage with Acosta. But it appears Ellis is still working at the Frances Perkins Building in some other, unspecified capacity.

  • Jennifer Hazelton: Once considered in line to become DOL’s assistant secretary for public affairs, the ex-Trump campaign staffer is no longer at DOL.

  • Andrew Wimer: Per his LinkedIn page and confirmed by a DOL spokeswoman, Wimer is now Acosta’s speechwriter. Previously, he was a media manager at the National Federation of Independent Business and a communications director for Rep. Joe Pitts (R-Pa.).

CO: Speaking of policies still in place from the previous administration, Tuesday marks the five-year anniversary of the deferred action for childhood arrivals program. Some 800,000 young, undocumented immigrants are protected from deportation under the program. Bloomberg Law immigration reporter Laura D. Francis told me the future for those folks is in doubt.

John Kelly kept DACA in place while he ran the Department of Homeland Security, but Kelly recently moved in to the White House to serve as Trump’s chief of staff. Acting DHS Secretary Elaine Duke hasn’t publicly weighed in on DACA.

A group of states has threatened to sue the Trump administration if it doesn’t kill the DACA program by Sept. 5. Given that Attorney General Jeff Sessions was a vocal DACA critic during his time in the Senate, it’s tough to say whether he would defend the program in court.

Laura told me it may be up to Congress to resolve the issue. Lawmakers have introduced a handful of bills that would give young immigrants lawful status. The trouble is they’re out on recess until early September and will return to the Capitol with fights looming over government funding and tax reform, not to mention uncertainty surrounding North Korea.

We’re punching out. Daily Labor Report subscribers can check in during the week for more information on the action in the courts and comings and goings in the Trump administration. The Competitive Enterprise Institute is out with a report on Wednesday that asks a provocative question: Do we still need an NLRB? The timing is a little curious, given that the board will soon be able to use a Republican majority to undo some of the Obama era decisions that the libertarian think tank would probably like to see scrapped. Then again, Team Trump has made clear that it wants to trim government spending. The CEI says maybe that should start with the board.

See you back here next Monday morning.

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