Monday morning musings for workplace watchers

Invitations That Won’t Get Lost in the Mail |The Case of the Missing Regulations | SCOTUS LGBT Cases, Take Two

Chris Opfer: Good morning and happy New Year’s Eve. We’re polishing our martini glasses and getting the confetti ready (OK, Jaclyn’s also got Mariah Carey’s recent NYE performances on repeat), but first have a few updates from the labor and employment world. Congress on Thursday will kick off a fresh legislative session.

Democrats are likely to ramp up their oversight of the Trump administration quickly after taking control of the House, including by calling various officials in for hearings. The Education and the Workforce Committee will likely want to chat with Labor Secretary Alex Acosta about the tip pool flap and a move to relax restrictions on teens working in health care. They’ll also probably have some questions for Acosta and National Labor Relations Chairman John Ring (R) on joint employment.

We’ll have to wait to hear what Acosta has to say about the Miami Herald report that he allowed an alleged sex abuser to get off with what some call a slap on the wrist when Acosta was a federal prosecutor in South Florida. Democrats appear to want to give the Justice Department’s inspector general time to look into the case first.

For those of you looking for more on the potential impact of Friday’s surprise decision in the Browning-Ferris case, go here. For Labor Department watchers, we have some news on a key official (Acting Wage and Hour Director Bryan Jarrett) heading back to the private sector here.

It wouldn’t be New Year’s Eve if we didn’t take a quick look at what happened in 2018. I spoke with Hassan Kanu about the year in labor and employment news in this week’s Punching In podcast.

Jaclyn Diaz: Christmas has come and gone and I’ve received just about everything I wanted—except joint employer or regular rate rules (and a pug). The regulatory agenda predicted a December release but who sticks to agenda deadlines these days? A slight delay is no big deal, and a January release is expected, I’ve been told.

I’ve written that the joint employer regulation might be published as an interpretive rule and there’s a debate over what kind of regulatory authority, if any, the department has to develop a joint employer regulation.

Regular rate is a worker’s typical rate of pay, which is multiplied by 1.5 to calculate the overtime premium pay for hours worked beyond 40 in a week. The DOL is proposing a modified rule to “clarify, update, and define regular rate requirements.” That same question of rulemaking authority is being raised on regular rate, and it’s likely the department will issue an interpretive rule on that issue as well.

One thing is for certain: 2019 needs to be a year of action, Michael Lotito, an attorney with Littler Mendelson, told me. Rulemaking takes a lot of time and 2020 is a presidential election year. If these major policies are still unfinished by then, it’s possible they’ll never be.

CO: The Supreme Court is scheduled to conference Friday on a trio of cases questioning whether sexual orientation and gender identity discrimination are forms of sex bias already banned by federal civil rights law. The pow-wow, which was originally slated for earlier in December, highlights a debate that’s already divided two Trump administration agencies.

Some LGBT rights advocates would like to see the court skip this round of cases, in part because of concerns about what the addition of Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh could mean for the outcome. If the court does decide to take up one or more of the cases, I’m curious to see where Chief Justice John Roberts ends up on the issue.

Despite talk of the chief justice replacing Anthony Kennedy as the swing vote, Roberts doesn’t often side with the court’s liberal wing. He wrote a dissenting opinion in the landmark same-sex marriage decision in 2015, raising religious freedom concerns among other problems with the majority opinion. It’s easy to say that means Roberts is likely to vote against recognizing a ban on LGBT discrimination without Congress explicitly writing it into the law. We may be able to test that prediction soon.

JD: In case you missed it last week, Craig Leen was named director to the Office of Federal Contract Compliance Programs. It was easy to miss given the holiday week and a lack of a formal announcement from the department.

Leen’s appointment was completely unsurprising to many including former OFCCP Director Ondray Harris who said, “It’s the smartest thing to happen at OFCCP since I left.”

But one former DOL official from a prior administration noted that the OFCCP directorship in Republican and Democratic administrations is a job that’s traditionally been held by a person of color with experience in civil rights, and Leen doesn’t fit the mold. Rather, he’s a Florida lawyer with ties to Acosta, and that seems to be good enough, this source said.

You won’t be hearing members of the business community complaining. Leen’s appointment is seen as good news.

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 on any and all labor and employment news: copfer@bloomberglaw.com, and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

Happy holidays! See you back here next Monday.

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