PUNCHING IN: WHAT'S NEXT FOR THE LABOR DEPARTMENT, GOOGLE?

Punching In

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn

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Opinion Letter Strategy | A Google Ruling Soon? | Regulatory Agenda Season

Chris Opfer: If you’re out at the beach, sitting in Bay Bridge traffic, or stockpiling a small arsenal of fireworks for the Fourth, know that we’re still at the office. You can rest assured that we’ll have you covered if and when any news hits. Congress isn’t in session, but White Houses of all stripes have been known to use the cushioning of holiday weeks – before and after – to slip out details they’d rather not publicize much. Maybe the Trump administration got started a little early with the request for information on the fiduciary rule that the Labor Department put out late Thursday. That’s not to mention official news that the DOL plans to walk back the Obama overtime rule, which we got late last week. 

Anything you want us to keep any eye out for in the coming days? Contact us at copfer@bna.com and bpenn@bna.com or on Twitter: @BenjaminPenn and @ChrisOpfer.

Ben Penn: Today would be a sneaky time for the White House to release a regulatory agenda, which is now long overdue. The Obama administration sometimes took advantage of pre-holiday distractions to dump all the agency rulemaking plans for the next 12 months. Trump’s first regulatory (or is it deregulatory) agenda promises to include some controversial rescission plans, whenever it arrives.

The Labor Department made an announcement last week that might have derailed the July Fourth vacation plans of our readers, particularly those of you in the management bar. We informed you last Monday to be on the lookout for an imminent return of Wage and Hour Division opinion letters. And sure enough, on Tuesday – tada – the WHD notified employer and employee stakeholders that they can submit their questions here.  Of course opinion letters bring management to mind first, but will there be any worker centers or unions planning to take advantage of this system?  

Attorneys, particularly those with business clients, have been preparing for the return of the letters ever since Trump pulled off the upset at the polls in November. Some began pre-drafting their questions based on the assumption that the WHD would reopened the process, and that when it did it would be inundated with requests. 

Lawyers who successfully submitted questions to the George W. Bush WHD shared some of their trade secrets with me back in March. You can refresh your memory here, but one takeaway: The key to retrieving WHD blessings that a business practice is in compliance was having contacts inside the building to informally discuss the issue before and after the formal request is sent. But without a WHD administrator nominated or a political official designated to the agency, I’m not sure if the career personnel running the show will be picking up the attorneys’ calls. 

Definitely expect some questions focused on the Fair Labor Standards Act’s ambiguities as to when smartphone usage is compensable time, and whether gig economy workers are independent contractors.

CO: What’s going on with the Google case? Administrative Law Judge Steven Berlin was supposed to issue a decision three weeks ago in the debate over how much pay data the Labor Department can demand from the tech giant as part of a federal contractor audit. The only way to enforce that deadline, however, is by filing a lawsuit in federal district court to force Berlin to speed things up. That means we’re all just going to have to get comfortable and wait.

Federal contractors and their lawyers will be watching to see where Berlin draws the line between reasonable and unreasonable data requests by the Office of Federal Contract Compliance Programs. The rest of us are probably more interested in the eventual results of the OFCCP’s audit. Labor Department Regional Director Janette Wipper said during an April hearing that the department had already uncovered “systemic compensation disparities against women pretty much across the entire workforce” at Google's Mountain View, Calif., headquarters. Sooner or later, the department will have to share some of that evidence if it plans to do anything with it.

BP: The government’s long-anticipated reply brief in the overtime rule appeal on Friday still leaves many questions. Would an appeals court overturn the reasoning behind an injunction without simultaneously reinstating the regulation? And if the rule somehow became effective this year, would the $47,476 salary threshold apply retroactively to Dec. 1, 2016? I don’t have the answers, but I do have an additional question that may have been overlooked from initial readings of the brief.

Sachin Pandya, the UConn employment law professor who once wrote an amicus brief in support of the Obama rule, was struck by the following phrase in the DOL brief: “In enjoining the 2016 rule ….” By contrast, the Obama DOL’s original appeal in December applied a more narrow interpretation of the injunction, writing that it “enjoin[ed] the Department from implementing and enforcing the updated salary level.” 

But Pandya pointed out that according to federal civil procedure rules on preliminary injunctions, the Trump DOL’s phrasing is a little misleading and could have implications for private lawsuits. “This is a debate about how far the injunction goes, and so by describing the district court’s injunction as enjoining the rule itself, the brief has made a mistake,” Pandya said. “I can’t tell whether they’re being sloppy or strategic.”

Workers recently sued Chipotle by making a similar argument –- that the injunction was limited to DOL and didn’t prevent private enforcement of the new salary level.  Perhaps this was a coincidence, or maybe Secretary Acosta owed Chipotle CEO Steve Ells a favor. 

CO: Meanwhile, the nominations are expected to continue to trickle in. Bloomberg Law’s Kristen Ricaurte-Knebel tells us she’s hearing quite a bit of chatter suggesting that Cynthia Hayes, the president of Georgia-based consulting practice Oculus Partners LLC, is being considered for the top job at DOL’s Employee Benefits Security Administration.

We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. I’ll be back later with a report on how businesses may bear the brunt of ongoing labor disputes related to a major sporting event. Ben has some info on an under-the-radar case that could have big implications for Big Government. Job insecurity got you down? Martin Berman-Gorvine is looking at why it could make you sick.

See you back here next Monday morning.

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