PUNCHING IN: Trump Union Shift, The Case that Could Decide Overtime

Punching In

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


Trump Change of Tune on Unions?  | Fun Weil it Lasted | Overtime Precedent

Chris Opfer: President-elect Donald Trump has had what’s best described as a “mixed” relationship with organized labor. The Trump Organization and business partners have worked with unions to get hotel, casino, apartment and other buildings constructed, but they’ve also found themselves embroiled in at least a few labor disputes. That includes allegations from the businesses that UNITE HERE intimidated and coerced worker workers at a Vegas casino to vote for union representation there last year. 

Now it seems that the Trump team is softening. Bloomberg Law’s Larry Swisher pointed out to us that Trump Ruffin Commercial LLC recently reached a four-year collective bargaining agreement with workers at the Trump International Hotel Las Vegas. The company also dropped its appeal of a National Labor Relations Board decision finding that Trump Ruffin unlawfully refused to bargain with culinary workers and bartenders represented by UNITE HERE. 

Meanwhile, UNITE HERE says Trump Hotels has agreed not to interfere with organizing activities at the new Trump hotel in the Old Post Office building on Pennsylvania Avenue near the White House. Trump Hotels CEO Eric Danziger recently even called the union an important partner and touted the pair’s “mutual goals.”

So does this mean we can expect Trump execs and labor leaders to join hands, gather round the fire and share some hot cocoa this winter? Give us your thoughts via email at copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: Last week I interviewed David Weil for what was probably the final time before he leaves his perch atop the Wage and Hour Division and resumes a humble life as an economics professor. Administrator Weil spoke with pride about the regulatory and strategic enforcement agenda over which he’s presided since 2014. The elephant in the room: many of those accomplishments – namely, the overtime rule – could disappear in the next few years, depending on what his successor does.

I can’t overstate how valuable a resource Weil has been. If the next WHD chief is as accessible to the media as Dr. Weil has been, it would be a godsend – and mostly for our readers. Even some business representatives can’t help but acknowledge he’s a mensch even though they say he cozies up to unions and doesn’t understanding the employer’s point of view.

Not many government agency directors set aside the time to explain their department’s strategic reasoning, both after headline-grabbing developments or just to schmooze about some data. Senior agency officials often are painfully uncomfortable with the press, fearing they’ll utter the wrong word or will be taken out of context. 

Not so with Weil.

CO: About that overtime rule. Lawyers challenging it in court argued earlier this month that an appeals panel shouldn’t speed up its review of the case in part because that might mean working through the winter holiday season. They lost that fight, and then got an early stocking stuffer in the form of the brief that DOL filed last week laying out its case for lifting an injunction on the overtime rule. If they’re using a quiet week at the office to dig into those arguments, attorneys for business groups and 21 states attorneys general may want to start with a 50-year-old decision involving overtime claims by a group of Mississippi newspaper workers.

The Fifth Circuit sided with DOL back in 1966, when a three-member panel said the department was authorized to go after the Mississippi Publishers Corp. for alleged failure to pay minimum wages and keep adequate pay records. More importantly, the appeals court said the DOL has “broad latitude” under the Fair Labor Standards Act to determine which workers qualify for the law’s white-collar exemption. That included setting a minimum salary level in order to qualify for the exemption. The DOL’s latest update to that salary level is exactly what’s in question in the pending Fifth Circuit case. 

The Mississippi Publishers decision also touches on something called a Belo contract, which I gather is a court-approved way to pay workers whose hours vary widely per week. If anyone wants to explain how that works, I’m all ears. 

BP: Bloomberg Law legal editor Hassan Kanu briefly leaves the federal employment beat to take a dive this week into the National Basketball Players Association’s new collective bargaining agreement with the NBA. He’ll be exploring how they avoided a lockout and whether the NBA is living inside of a TV “sports bubble.” Hassan is referring to “the idea that all this money in basketball and sports in general (player salaries, team valuations) may actually be creating a bubble because the underlying business model depends on TV viewership, which is fast declining.” Speaking purely as a lifelong Washingtonian, maybe if the Wizards hadn’t destroyed the franchise’s future on a pipe dream that they could sign Kevin Durant, then fans would start tuning in.

CO: Fire Ernie Grunfeld. Give James Madison University alum Steve Buckhantz a raise. That’s all I have to say about Wizards basketball. 

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

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