Monday morning musings for workplace watchers

Alex & Frank| Labor Department Visa Fraud Crackdown | AFL-CIO’s Crystal Ball

Chris Opfer: Labor Secretary Alex Acosta last month huddled twice with Republican consultant Frank Luntz. The meetings came in the two days before the Miami Herald published an explosive story detailing Acosta’s role in a deal that allowed a Florida hedge fund manager to escape harsh punishment on allegations he sexually abused a number of teenage girls.

Luntz is probably best known as the cable news focus group guy. Whether it’s to better understand voters who supported Roy Moore, measure performance in the recent Texas Senate debates, or tap into what it’s like to be a Muslim American, he’s the person networks often bring in. But Luntz has also played an important role in shaping the GOP’s message on everything from Newt Gingrich’s “Contract with America” to global warming and Occupy Wall Street. That’s what made us wonder whether the chats with Acosta—a 10-minute call one day and an hour-and-a-half lunch the next—were meant to plot out a damage control plan in advance of the Herald story.

The Labor Department poured cold water on that hunch.

“These are completely unrelated,” a DOL spokeswoman said when I asked about a link.

So why all the Luntz time? Could it have been to weigh a potential attorney general nomination for Acosta? Or maybe the Labor Department wants to focus-group the upcoming overtime rule. For all we know, they could have been strategizing over what Acosta should bring to the Trump Cabinet’s white elephant gift exchange.

In other holiday news, Hassan Kanu talked office party pitfalls with Jonathan Segal from Duane Morris in this week’s Punching In podcast. Here’s my own pro tip: Eggnog is a bad idea.

Jaclyn Diaz: Perhaps Acosta’s contribution to the gift exchange will be more foreign work visa oversight? I’m not sure how you wrap something like that.

In case you missed it, last week I wrote about the DOL’s plans to crack down on employers who use foreign worker visas. The department is broadening its investigatory scope in looking for employer fraud in applications for various work visa programs. The programs under review will include those for seasonal workers in agriculture and other sectors, as well as programs for specialized, high-skilled workers.

The DOL is set to roll out a rule in June that would place all foreign labor certifications under its authority to suspend or disbar employers from the program if they commit misconduct like paying workers improperly. But questions about the agency’s legal authority to do this are already being raised. The department in previous administrations took the position that it only can suspend or debar employers using the H-2A and H-2B programs, Mary Pivec, an immigration attorney told me.

Add this to the list of other topics where the agency’s legal authority has been questioned, along with the upcoming “joint employer” liability rule and the 80/20 regulation for tipped workers. I’ll be watching what the agency is doing on these foreign worker visas in the new year.

CO: The AFL-CIO’s big look at some of the existential questions facing organized labor is moving along on schedule, Andrew Wallender reports this morning. What we don’t know is what the Commission on the Future of Work and Unions will ultimately suggest as a path forward in these interesting times for traditional labor unions.

Punching In readers may recall that American Federation of Teachers President Randi Weingarten told us the commission was created as part of a deal between Weingarten and AFL-CIO chief Rich Trumka to bury the hatchet after Weingarten considered making a run for Trumka’s job last year. Since then the Supreme Court’s decision in Janus has hit some labor groups in the wallet, the Trump administration has made various moves critics say will hamper labor organizing, and automation and gigification continue to change the way people work.

But it’s not all bad news for labor leaders. They helped beat back a right-to-work referendum in Missouri and have seen minimum wage increases moving around the country, including in red states. That’s not to mention the recent success of teacher strikes in West Virginia and Oklahoma, and of Marriott protests in California and beyond.

Andrew and I will have more on what’s next for the world’s largest labor group this week.

JD: Since we’re on the topic of labor, let’s talk worker centers. Early last week I wrote about the results of a Freedom of Information Act request. We wanted to know how many investigations have been done on worker centers, given that the Office of Labor Management Standards was expected to be scrutinizing them closely in a GOP administration. The results? Just one investigation was completed since Jan. 20, 2017.

Charlotte Noss, the National Employment Law Project’s worker center director, said there was a fear among worker organizations that after the inauguration there would be a rash of investigations.

But Acosta has “taken a very rational approach” to worker centers, as they are incredibly diverse groups aimed at helping workers in various industries and it’s hard to treat them all the same, Noss said. The agency simply doesn’t have the authority (ah, that authority question again) to force worker centers to be categorized as labor organizations, she said.

“It’s possible they’ve been looking into these groups and haven’t found anything, but if they had a smoking gun they’d be using it,” she said.

We’re punching out to prep for our own white elephant. 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.

See you back here next Monday.

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