PUNCHING IN: Trump on Hill, Labor Dept. Waits for Acosta

Punching In

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


Trump Talks to Congress | Postcards from the Labor Department| Senate Democrats Watch

Chris Opfer: President Donald Trump has an interesting relationship with Congress. Since the November elections, he has referred to Paul Ryan in one breath as a fine wine while in the next warning the House Speaker his tune could change if Ryan “goes against” the president. Trump has also called Senate Minority Leader Chuck Schumer a “lightweight” and discarded civil rights icon John Lewis as “all talk.” That’s not to mention the president’s promise to push term limits on lawmakers to bring new blood to D.C.

All eyes will be on Capitol Hill Tuesday when Trump addresses a joint session of Congress. This is not a State of the Union address, but it may offer insight into how the president plans to work with (or around) the legislative branch. The speech is likely to include at least some mention of regulatory reform and the pathway to peeling back a varied assortment of Obama-era initiatives.

Will Trump talk overtime or any other specific labor and employment policies? Give us your best guess at copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. 

Ben Penn: The beachhead team is keeping the lights on at the Frances Perkins Building, but as far as we can tell, not much else is happening. What can temporary beachhead leaders, along with career senior executives, actually accomplish until Alex Acosta is confirmed? I’m told very little.

In the five weeks after arriving on inauguration day, the beachhead crew is playing musical chairs (bye James Sherk, hello Nick Geale), with veteran conservative labor policy hands. The Puzder-to-Acosta transition is in a holding pattern. For instance, Geoff Burr, the ex-ABC lobbyist who was working at beachhead and expected to become Andy Puzder’s chief of staff, remains at DOL after Puzder’s downfall. We hear Burr’s future is in limbo, subject to Acosta and the White House’s preference.

One person to keep an eye on is Gregory Jacob, a partner at management law firm O’Melveny & Myers and ex-DOL solicitor under President George W. Bush. Jacob and Acosta are friends. When I caught up with him last week, Jacob didn’t mince words: “Alex will make a great secretary of labor, and while I am very much enjoying private practice, it would be an honor to return to public service and to get to work with him.” Jacob’s practice is focused largely on ERISA law, so maybe he’s eyeing the assistant secretary for employee benefits security spot? 

Bloomberg Law’s Jay-Anne Casuga already reported a few names being floated for OFCCP director

Venturing outside of my DOL comfort zone, I hear the White House counsel’s office has designated attorneys to vet potential Senate-confirmed nominees for the EEOC and the NLRB. If you’re interested in an EEOC gig, send your resume to Stacy Amin, a former HELP Committee counsel. And if you prefer the NLRB, try David Morrell, a former Jones Day attorney. 

CO: Trump is set to land in the Capitol at a time when some of his adversaries are finding themselves between a rock and a hard place. We’ve been keeping an eye on the 10 Senate Democrats from states Trump won in 2016 who are up for re-election in 2018. For those keeping score at home, that’s: Heidi Heitkamp (N.D.), Joe Manchin (W.Va), Tammy Baldwin (Wis.), Joe Donnelly (Ind.), Claire McCaskill (Mo.), Bob Casey (Pa.), Jon Tester (Mont.), Sherrod Brown (Ohio), Bill Nelson (Fla.) and Debbie Stabenow (Mich.).

Republicans may control both chambers of Congress, but they need some help from Democrats to get anything done in the Senate. We’re curious whether some of those red-state Democrats already looking ahead to the ballot boxes may cross the aisle to give certain bills the 60 votes needed to avoid a filibuster. The same goes for the vote on Neil Gorsuch’s Supreme Court nomination.

The trouble for those lawmakers is some of their voter base isn’t pleased with the state of things in Washington and want their representatives to put up a stronger fight. Things have been getting testy at a number of constituent town halls across the country, a development that some are calling the rise of the left’s version of the Tea Party. Democrats who want to get re-elected not only have to be prepared to take fire from GOP challengers but also from primary opponents who may try to paint them as stooges for Trump. 

So what does that mean for labor policy? A handful of Democrats may have a lot to think about when they’re eventually faced with votes on bills to undo the overtime rule and the NLRB’s expansion of joint employer liability. We’ll also be watching to see how they respond when Trump releases details of his infrastructure spending plan later this week.

In the meantime, Democrats have a new captain steering the ship. Former labor secretary Tom Perez was elected DNC chairman over the weekend. He moved swiftly to try to unite Democratic factions by naming rival Rep. Keith Ellison (D-Minn.) vice chairman.

BP: As Perez attempts to tackle the monumental task of reviving his party, I’m reminded of the one common thread from my many interviews with people who worked under him at DOL. On and off the record, he's said to be a workaholic committed to squeezing every minute out of every day, in a fashion that inspires underlings to do the same. No matter what you think of his politics, it’s undeniable that Perez’s energy helped deliver this victory. We'll see how it translates in the 2018 midterms.

All of this Labor Department personnel gossip has me ready to dive into a substantive discussion of what the nominees will do once confirmed and how the absence of permanent political leaders stalls the GOP agenda at the DOL. I’m exploring both topics later this week. 

What I’ve learned is that employers under investigation by the DOL are getting antsy for business-friendly appointees to be sworn into office. The attorneys are stalling, as both sides await new policy direction on certain types of audits. 

For instance, the WHD is still enforcing the law when businesses are clearly out of compliance. But some cases won't be settled until the division gets an administrator who would likely direct regional offices to only pursue two years of back wages, not three, and no longer assess liquidated damages in most instances.

Then there’s the agency’s overtime exemption stance. All I can say is, stay tuned. 

CO: On that note, we’re going to punch out. Daily Labor Report subscribers can check back in with us during the week. If you’re looking for more insight into how Acosta may run the Labor Department, start here. Bloomberg Law is hosting a webinar on Tuesday on how employers can use data to ensure pay equity. Our own Kevin McGowan is moderating. He’ll be joined by Ellen Feeney (ADP) and Esther G. Lander (Akin Gump). Meanwhile, Bloomberg Law’s Patrick Dorrian is taking a look at whether the Supreme Court will decide if workers suing for age discrimination can do it using a disparate impact theory.

See you back here next Monday morning.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform.  Click here to request a free trial.