Monday morning musings for workplace watchers

Deck Reshuffling | DOL Has Competition on Overtime | Digital Replication Drama

Chris Opfer: Good morning and happy holidays. I’m off to wear a nice groove into the family couch for a few days. It appears a number of President Donald Trump’s nominees for key labor and employment posts will also have some time to chillax as we head into the new year.

Trump and Democrats in Congress are still locked in a standoff on Mexican border wall funding that started a partial government shutdown last week. The Equal Employment Opportunity Commission is among the agencies currently on ice. When the lights go back on at the EEOC, the commission will be down a member. The Republican hold on Chai Feldblum’s (D) nomination means the two-term commissioner will likely be exiting the agency Dec. 31. That leaves the EEOC down to two members, which isn’t enough for a quorum. Meanwhile, Daniel Gade recently told the White House that he’s tired of playing the waiting game and no longer wants to be considered for one of two open Republican EEOC slots.

Talk of a deal to get Mark Gaston Pearce (D) back on the National Labor Relations Board in exchange for moving Trump Labor Department nominees like Cheryl Stanton (Wage and Hour Division) and Scott Mugno (Occupational Safety and Health Administration) didn’t pan out. That one likely died when Sen. Patty Murray (D-Wash.) said she wouldn’t go for any package that didn’t have Feldblum in it.

The process starts all over when Congress returns next week. Trump will have to renominate all of his picks, and Democrats are likely to demand that nominees sit for new confirmation hearings. We’ll keep an eye out for Feldblum and Pearce, but the thinking on Capitol Hill is that Trump will pick someone else to fill Feldblum’s seat and leave Pearce’s spot open for a while.

Bloomberg Law’s Hassan Kanu recently sat down with Randy Johnson from Seyfarth Shaw to talk about what Democratic control of the House will mean for Trump labor and employment agencies.

Jaclyn Diaz: #NewYear #NewCongress means congressional Democrats will make a go of tackling worker-friendly legislation. They’ve made it known they want to pursue a $15 minimum wage policy in 2019, but what else could be on the table?

Karla Walter, director of employment policy at the Center for American Progress, told me earlier this week that we could see Democratic action on overtime and apparently she’s not far off.

The DOL is presumably still working on an overtime rule to be released sometime in March 2019, according to the fall regulatory agenda. In the event the department doesn’t publish, Democrats have indicated they’ll be waiting in the wings.

Rep. Mark Takano (D-Calif.) makes it a habit of bringing up the need to introduce overtime legislation regularly. His office said it continues to be a top priority for the congressman. “In the next Congress, he will be looking for as many ways as possible to continue moving this issue forward,” his office told Bloomberg Law.

That could mean a policy that mirrors the Obama-era overtime standards. The Obama DOL proposed a $47,500 annual salary level for exemptions on getting paid time and a half. The rule was expected to make some 4 million workers newly eligible for overtime pay. That proposal never took hold because a judge halted the process in 2016 before the rule was ever implemented.

A Democratic staffer for the House Committee on Education and the Workforce informed me that overtime continues to be the DOL’s responsibility. “But if they fail to fulfill that responsibility we will have to intervene through legislation,” the staffer said. Clock’s a-ticking even louder, DOL.

CO: I recently reported on how future of work questions are popping up in Hollywood. Robots aren’t likely to start replacing leading men and women anytime soon, but the union that represents them does have some immediate technological concerns. David White, SAG-AFTRA’s national executive director, told me the union is fighting digital replication on three fronts: negotiation, lobbying, and investigation.

“Deepfakes” happen when artificial intelligence is used to put one voice over another in an existing video. More frequently, deepfakers are enhancing their ability to manipulate photos of public figures and others to make entirely new videos.

The danger hit home in Hollywood when the technology made its way into pornography. Some of SAG-AFTRA’s celebrity members became victims of deepfakes when their faces were superimposed on actors in porn videos. White told me the same technology makes it easier for production companies to take authorized images of actors captured for a film and use them for other movies or projects without the actor’s knowledge or permission.

The union is trying to address that issue in collective bargaining negotiations, and by reaching agreements with individual production houses. It’s also lobbying states to update “personality rights” protections for entertainers. SAG-AFTRA is even using its own technology to go out and look for unauthorized uses of its members’ images. That includes lesser known actors who do much of their work appearing in background and crowd shots.

“Background actors are the least protected because they get paid for the day,” White said. “If it turns out they used to have 100 days and now they have 50 days because someone is using their scan, that’s a big deal.”

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.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate, and complete advice to clients, by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.