Punching In: A Game of Thrones at the AFL-CIO (1)

Monday morning musings for workplace watchers

The Union Won’t Pick Up the Tab | Fast Times at the Wage and Hour Division | House to Hold LGBT Vote

Chris Opfer: The Battle of the $117 Miami Strip Club Bill may be over, but a recent scuffle between two AFL-CIO officials is the latest sign of growing dissension in the ranks of the world’s largest worker organization. Some labor leaders see that as an opportunity to gauge support for a run at the throne.

The AFL-CIO’s executive committee last week agreed to lift the suspension of Tefere Gebre—the federation’s No. 3 official—stemming from his botched attempt to get reimbursed by the organization for a (relatively inexpensive) night at a South Florida adult entertainment establishment. President Richard Trumka informed Gebre a little more than an hour before the committee meeting that the suspension with pay was removed, according to an email obtained by Bloomberg Law.

Gebre said an assistant mistakenly made the reimbursement request, which was revoked after the bill was flagged, according to Splinter News. He also questioned Trumka’s power to put him on administrative leave in the first place.

Trumka still has more than two years left in his third term at the helm, but that’s not stopping some of his possible successors from sniffing out potential support for a run if and when the seat opens. Three names are swirling as likely candidates to eventually replace Trumka, and at least two of them are making calls behind the scenes to try to build a backing, according to sources.

• Liz Shuler: The AFL-CIO secretary-treasurer has long been seen as the heir apparent. She was largely the public face of the federation’s successful effort to kill right-to-work legislation in Missouri last year.
• Randi Weingarten: The American Federation of Teachers president flirted with challenging Trumka in the last AFL-CIO election and has since been a prominent voice in highly publicized school house strikes. Weingarten is taking a page from the Paul Ryan for Speaker of the House playbook: She will publicly say she’s not interested in the job, while remaining open to the option behind the scenes if sufficiently urged to do so by others.
• Sara Nelson: The head honcho at the Association of Flight Attendants’ has seen her star rising since she helped ground last year’s government shutdown. She’s looking to use that momentum to capture the AFL-CIO crown.

Trumka is said to be planning to stay at least through the 2020 election. Organized labor is trying to put on a unified face as the White House race heats up. Bloomberg Law’s Jaclyn Diaz spoke with Rutgers University professor Rebecca Givan about how Democrats gunning for President Donald Trump’s job are courting unions, in this week’s Punching In podcast.

Our colleague Ben Penn is back in the saddle after two semesters at the University of Michigan, where I’m going to assume he played a lot of hacky sack on the quad, learned the guitar, and rooted aggressively against Ann Arbor’s local football team.

Ben Penn: Thanks, Chris and Jaclyn, for generously allowing me to butt back into the column. In my post-fellowship enlightened state, I’d like to ruminate on the meaning of life and labor journalism.

On second thought, how about I pick up where we left off in August in the wage-and-hour space? Last summer, folks were wondering if the Trump administration’s wage enforcement arm would:

• have the bandwidth to roll out three high-priority proposed rules (overtime, joint employment, and regular rate), all before a self-imposed deadline of early 2019;
• finally get a Senate-confirmed administrator; and
• publish guidance clarifying the line between employee and independent contractor, particularly as it affects workers in the gig economy.

Opens inbox on first day back at work: check, check, and check.

The agency’s recent productivity leaves us with plenty of territory to cover and questions to ask. Perhaps too much and too many.

Case in point: We’re hearing the Labor Department is considering extending the public comment period for the proposal to update the definition of regular rate of pay for determining overtime wages (current deadline May 28) and possibly the comment deadline for the more contentious proposal to narrow joint employer liability for franchises and other businesses (now set for June 10).

Worker advocates and Rep. Alma Adams (D-N.C.) requested more time from DOL to submit comments on both rules. Granting the requests is a move that would typically draw ire from the business community, which wants these rules finalized ASAP. But they could use the extra time, too. The department is in the rare position of soliciting concurrent comments on three regulations that all propose significant revisions to the Fair Labor Standards Act. Many stakeholders will need more time to digest them. The third proposal, of course, is the one that bumps the overtime pay salary threshold level to about $35,000. The May 21 deadline for comment on that one apparently isn’t going to budge.

So wage and hour lawyers all over town are scrambling to submit comments to influence the rules’ final language. The typically impatient bunch seems to be OK with getting a little more time.

If you’re working on a comment letter, do make note of the fact that the official DOL wants you to address your notes to is no longer with the WHD. The agency’s former director of regulations, legislation, and interpretation—Melissa Smith—in recent days jumped ship to the Employment and Training Administration. Amy DeBisschop has assumed this critical WHD post on an acting basis.

And then there’s Cheryl Stanton, who finally landed as wage hour chief on April 29. Some people likely noticed that she was sworn in at the Perkins Building a few hours after then-acting WHD Administrator Keith Sonderling fired off an opinion letter stating that workers for a sharing economy company are independent contractors, not employees subject to the FLSA. Sonderling, now Stanton’s second-in-command, no longer has the authority to sign opinion letters.

Could the timing of his opinion letter possibly be a coincidence?

CO: The House will vote this week on the Equality Act, a wide-ranging bill that would ban sexual orientation and gender identity discrimination on the job and in a variety of other settings. Much has changed since the Senate narrowly passed the Employment Non-Discrimination Act six years ago, but this time around the legislation’s future once again hinges on Republican support.

Senate Majority Leader Mitch McConnell (R-Ky.) has yet to say whether he will move the bill to the floor for a vote, if passed by the House. Whether election implications and the Supreme Court’s decision to take a look at LGBT discrimination in the workplace force his hand remains to be seen. It’s a safe bet that at least some GOP lawmakers will push for amendments to enhance religious freedom amendments if the measure moves.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.com and bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

See you back here next Monday.

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