PUNCHING IN: Trump Contract Questions, WHD Technology

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Trump’s Contractor Conundrum | WHD Technology Watch | Uber/Lyft Fingerprints

Chris Opfer: Attorneys will probably remember that this is one of at least two times a year when overstimulated law school students fret that their entire futures depend on how they do on a couple of exams. President-elect Donald Trump last week appeared to be gearing up for an early test of his own with an expected announcement about what he planned to do about all of his business involvements once he moved into the Oval Office. That announcement was abruptly put on hold, but we (like others in the press corps) are still curious about some of the conflicts of interest that could come with having a business magnate pulling the strings at 1600 Pennsylvania Ave.

As president, Trump will have broad authority to set the rules of the road for federal contractors. One problem, of course, is that Trump is a federal contractor. The Trump International Hotel recently opened in the Old Post Office building, just a hop, skip and jump from the White House. The Trump Organization is leasing the hotel building from Uncle Sam.

President Barack Obama has used executive orders to try to turn contractors into his version of model employers. That includes requiring them to pay a $10.10 minimum wage, offer paid sick leave and protect workers from sexual orientation and gender identity discrimination, among other things. Trump, meanwhile, has been vocal about throwing a wide range of Obama administration orders and regulations into the scrap heap.

We haven’t yet wandered over to Federal Triangle to see what Team Trump has done with his inn, but at least one of us is skeptical about the wine. I’m a native Virginian who has traveled far and wide across the Commonwealth. I go to Virginia wineries for the ambience more than what comes out of the bottle. Hit us up via e-mail: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn with any hotel reviews, recommendations or thoughts on where to find a decent Cotes-du-Rhone in this town.

BP: Any ethics attorneys care to tell us whether Trump repealing the federal contractor “blacklisting” executive order—which requires companies to disclose recent labor violations—might qualify as a conflict of interest? Something tells me that will be the least of the conflict concerns for Trump’s lawyers these next few months, given the wide reach of his business activities. Plus, the blacklisting question may be moot: a Texas court has already put the order on hold.

Anyway, much of the talk about what happens next year at the Labor Department has revolved around what the agency WON’T be doing. It’s expected that the DOL won’t fight to save theovertime, fiduciary and persuader rules, and will abandon any plans to rethink joint employment relationships. Generally speaking, the free market, laissez faire principles favored by Andy Puzder certainly could mean a quiet beat for me next year, as the DOL transforms into what one of the department’s former economists dubbed “Dept. of Commerce Junior.” Lord knows I could use a vacation.

But there’s at least one topic that might actually see some bipartisan support, and it happens to come from, surprise—the Wage and Hour Division. The WHD recently buried in its long-term action list a request for information on employee use of electronic devices. The division’s next administrator may take a look at rescuing that RFI from the regulatory graveyard (background here). There’s interest on both sides of the aisle in providing clarity on when employees should be compensated for performing work on a smartphone or laptop outside of scheduled hours. The law is extremely vague on this concept, thanks to FDR and Frances Perkins’ inability to predict the invention of iPhone e-mail apps back when the FLSA was born in 1938. 

We’ll be closely monitoring exactly how the WHD chooses to handle this tricky situation. The answer could come via regulation, guidance, FAQs, or maybe something really cool that I don’t even know about. Just remember that this isn’t a strictly employer versus employee issue. Worker advocates recognize that it behooves employees for the boss not to bar all off-the-clock technology use out of fear of getting sued. Speaking of which, Chris, I worked a 15-hour day yesterday, FYI.

CO: I knew there was a reason I went with the triple espresso this morning. Any conversation about technology and work these days eventually involves the gig economy. Bloomberg Law’s Jon Steingart tells us he’s watching to see if Maryland’s Public Service Commission will decide to give Uber and Lyft a waiver from state law requiring them to do fingerprint background checks on drivers. “The companies have threatened to end operations in my home state if they have to adhere to these rules, saying their background check system works better than the FBI’s fingerprint database,” Steingart tells us. That’s not a hollow gesture: the ride sharing giants pulled out of Austin, Texas, in May over similar concerns.

In related news, Bloomberg Law’s Patrick Dorrian has been looking at some unique employment discrimination issues that may come up in sharing-economy businesses. That includes the “customer preference” bias that can stem from bending over backwards to please ride sharers, Airbnb apartment renters and Instacart grocery shoppers, among others. More on that story in Daily Labor Report this week.

BP: During the transition’s final weeks I’ll also be exploring how the change in hands extends to the plaintiffs’ bar. We don’t know exactly what Puzder’s enforcement posture will be, although it’s certainly assumed to be more conciliatory to employers than the current regime’s. That could mean that plaintiffs’ attorneys will take on a heavier load of the cases, like those involving unpaid overtime claims.

More on this next month, but for now, I’ll leave you with the words of Joseph Sellers, of Cohen Milstein Sellers & Toll, who’s had a lengthy career representing employees in civil rights and employment class actions. “I don’t want to presume that the new administration is going to back off of investigations that were undertaken before,” Sellers told me. But if they do bring fewer cases, he said:  “I think we in the private bar have to really be on our toes here. And I think we are ready to do it, but we are pretty busy with the work that we have had in the past.”

CO: Last, but not least, the D.C. Council is scheduled to vote Tuesday on a measure that would require District employers to offer their workers up to eight weeks of paid parental leave. The bill, approved in an 11-2 preliminary vote, is expected to land on Mayor Muriel Bowser’s desk for signature. Bloomberg Law’s Rhonda Smith tells us Bowser has expressed concerns about the cost to employers and has questioned extending benefits to D.C. workers who live in Maryland and Virginia.

That’s it for today. Daily Labor Report subscribers can check back with us during the week. I’ll be taking a look at some Brexit-related employment discrimination considerations for U.K. businesses. Our colleague Jay-Anne Casuga will also explore federal contractors’ use of data analytics for hiring and other employment decisions.

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

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