Monday morning musings for workplace watchers
Trump Training Week | Wage & Hour Scuttlebutt | EEOC Openings
Chris Opfer: Welcome to workforce development week. That’s what the Trump administration is calling its flurry of activity in the coming days, which centers around the president’s first official trip to Labor Department headquarters on Wednesday. Trump will make a “major policy speech” on the administrative actions that he intends to take to significantly beef up apprenticeship opportunities, adviser Reed Cordish told reporters last week.
The announcement comes as Labor Secretary Alex Acosta has recently installed Ondray Harris as a senior adviser in the Employment and Training Administration, a source tells us. Harris is a former head of the Justice Department’s Community Relations Service and previously served as executive director of the Public Employee Relations Board.
We still don’t know exactly what Trump’s proposal will look like, but it’s safe to say the administration will look to expand partnerships between employers, trade schools and state governments. It sounds like Trump may also call on Congress to take another look at the Workforce Innovation and Opportunity Act. The irony there is that WIOA is one of the very few pieces of bipartisan labor-related legislation that we’ve seen pass in recent memory, or at least since I started covering the beat. The measure sailed through Congress in combined 510-9 votes in the House and Senate in 2014.
Ben Penn: I’m still digesting all the news last week out of the Wage and Hour Division and what it means for the future of enforcement. Before you could finish your second cup of coffee Wednesday, Secretary Acosta sent signals about changes coming down the pike for this $227 million subagency tasked with protecting workers’ paychecks.
To recap, at 8:30 a.m., the secretary announced the withdrawal of two administrator interpretations on joint employment and independent contractor misclassification, but did not provide any explanation about why the informal guidance memos were taken down. The AIs are still preserved here and here, for those of you feeling nostalgic for the Obama/Weil days.
Later that morning, Acosta told House appropriators he believes in robust wage-hour enforcement, including pursuing high-impact cases. But he also said he’d like to revisit the Obama administration’s overtime rule by soliciting public comments.
It remains a mystery why a department that already received 270,000 public comments on the same rule in 2015 needs more feedback. What does adding an extra step to the process accomplish, especially if the plan is to issue a new rulemaking proposal, which would also require a public comment period? These are not rhetorical questions.
A big part of the problem is that the WHD, which handles the OT rulemaking, lacks a confirmed administrator or any other political personnel. I’m told this has been creating chaos at the Perkins Building, and some uncertainty out in the field, as career officials wait for clear instructions.
Daily Labor Report subscribers can expect more reporting on this subject later this week.
CO: A House Education and the Workforce subcommittee Wednesday will take up a suite of bills intended to chart a new path for federal labor relations law. The road may eventually lead to passage in the House, but it’s likely to run directly into a brick wall in the Senate. Still, the measures are examples of some of the moves Republicans would like to see the National Labor Relations Board make once Trump gives the board a GOP majority.
The NLRB could accomplish some of the goals of the bills, like peeling back the “quickie” union election rule and limiting the worker contact info that unions get during elections, via the rulemaking process, former NLRB member Sharon Block (D) told me. Block made clear that she’s not a fan of efforts to undo the current requirements in place. She also said any changes will probably take some time.
“Big rulemakings are hard for small agencies to do,” Block said. “The value of rulemaking, of course, is that it gives more opportunity for the public to weigh in and obligates the agency to respond.”
BP: Did you really think I was done talking wage and hour?
David Weil, who issued the two withdrawn guidance letters, told me he believes the secretary conveyed mixed messages last Wednesday. “I think the question that is on the table is what does the administration’s decision to pull the AIs portend in terms of future emphasis of enforcement?” the former WHD chief said. “What I deeply hope it does not mean is that they’re going to, for instance, pull back on the issue of misclassification.”
Acosta somewhat assuaged Weil’s concerns when he said at his budget hearing that it’s important to pursue WHD cases that focus on bad-acting employers to send a signal to everyone else. “That’s certainly a principle that I very much agree with and was central to our strategy,” Weil said. “Pulling guidance that is meant to clarify responsibility and is designed to be helpful to employers – I don’t get how that’s consistent with” Acosta’s message before the appropriations committee.
When the WHD released those AIs in 2015 and 2016, Weil couldn’t have predicted the volume of public reaction they generated. Business groups cheered when the memos went down, and that is a likely explanation for why Acosta removed them. He’s navigating a complex deregulatory process that will stretch into 2018 on the overtime and fiduciary rules. For now, he’s in search of a few easy wins that prove to the right that 2017 will not mark the Obama labor agenda’s 9th year.
But that still leaves us with lots of questions about the Trump WHD’s priorities. Perhaps the first clear signal will come when the White House nominates Weil’s successor. Sources told me last week that Cheryl Stanton is the expected pick, but considering the pace of this administration’s appointments, she may not want to put her South Carolina home on the market just yet.
CO: Meanwhile, EEOC Commissioner Jenny Yang (D) is set to take an early summer vacation. It's not clear whether Yang will head directly to Seacrets in Ocean City when her term ends in a little less than three weeks or if she prefers the quiet calm of the Outer Banks. What we do know is that the vacancy – and another opening that’s yet to be filled - gives the Trump administration the opportunity to install a Republican majority on the commission.
Bloomberg Law’s Kevin McGowan says that could mean a “more employer-friendly agenda” for the EEOC. Business groups are hoping that the realigned commission will start by abandoning the plan to require most employers to provide summary pay data about their workers. Acting Chair Victoria Lipnic (R) voted against the plan last year and is on record as saying she’s “skeptical” that any potential benefits would outweigh the reporting burden for employers, Kevin tells us.
Don’t expect any swift changes. Like the WHD opening in the Labor Department, both commissioner spots require Senate confirmation. Even if Trump were to announce new commissioners soon, it’s not likely that lawmakers give them a look until after the August recess.
We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. The Age Discrimination in Employment Act isn’t ready for an AARP card yet, but it did just turn 50. Kevin McGowan will be following as lawyers and policy experts gather to talk about how to adapt the five-decades-old law to the modern workplace. Meanwhile, Martin Berman-Gorvine has some insight on how businesses can allay older workers’ bias concerns. OFCCP expert extraordinaire Jay-Anne Casuga will have more insight on the proposed EEOC merger.
See you back here next Monday morning.
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