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Punching In: Labor Board Shift, Overtime-Shutdown Intrigue

Jan. 22, 2019, 11:01 AM

Monday morning musings for workplace watchers

You Call that a Tip? | Shutdown Goes into Overtime | The Atlantic City Experiment

Chris Opfer: If there’s one ruling out of the current National Labor Relations Board that neatly sums up the board’s shift away from its predecessors’ approach to workplace law, it might be last week’s decision in a case involving JFK Airport skycaps who were canned for complaining about tips.

The board’s Republican majority in a 3-1 decision said the skycaps’ boss didn’t violate labor law by telling them to hit the bricks after the workers bristled at being asked to help a soccer team with its equipment. Although one of the skycaps complained that they didn’t get tipped the last time they did a similar job—and the group eventually assisted with the equipment—the board said they weren’t engaged in protected concerted activity under the National Labor Relations Act.

Bloomberg Law’s Robert Iafolla last week had the details on the case law that the board overturned to reach that decision.

The ruling is the latest example of the board rolling back what was an expansive definition of concerted activity during the Obama administration. It’s significant because workers are protected from retaliation for engaging in that kind of activity, regardless of whether they’re unionized. In an era where some 6 percent of private sector workers are covered by union contracts, that makes the board’s narrowing of concerted activity a big deal no matter what side of the labor-management fence you’re on.

Bloomberg Law’s Hassan Kanu spoke with James Plunkett of Ogletree Deakins in this week’s Punching In podcast about how vacancies in key Trump administration posts are impacting labor and employment policy. Plunkett also raised some questions about the rulemaking impact of furloughs in the Office of Information and Regulatory Affairs. Jaclyn has some more info on that situation.

Jaclyn Diaz: The government shutdown has reached a new record of 31 days. The longer the funding debate continues, the more problems it may cause for agencies’ regulatory work. That includes at the Labor Department.

The shutdown may spell trouble for the DOL’s overtime rule, according to Amit Narang of Public Citizen. The proposal is pending review at OIRA, which is largely closed. That makes pushing overtime, or any regulatory matter, through to OIRA problematic, Narang told me.

Certain agency work is allowed to continue during a shutdown if it’s considered “excepted activity.” In other words, it has to be considered crucial to national security or safety. Narang says overtime doesn’t fit the bill, no matter how much business lobbyists are pushing for a new rule.

To properly review a rule, OIRA must reach out to other federal agencies that may be affected by the proposal and to ensure there’s no overlap with similar work being done by the agency promulgating the rule. That’s not supposed to happen during the shutdown, when OIRA’s career experts are likely furloughed.

But Narang said he’s concerned the Trump administration might be pushing new regulations anyway. Some rules still under review when the shutdown started have since been cleared by OIRA. The Justice Department also just issued guidance easing the standard for publishing regulations from agencies, like the Labor Department, that are not currently shut down.

“I’m increasingly worried that OIRA will try to clear the overtime rule despite it not being excepted activity and despite not having the staff that’s required for an adequate review,” Narang said.

If Narang’s hunch is right, it seems that the policy may have a scarlet letter to its name: L for Lawsuit. Critics of the overtime rule will likely try to get it overturned by pointing to the potentially problematic review process during the shutdown.

CO: It probably wasn’t much of a surprise to NLRB watchers last week when Chairman John Ring (R) announced that the board is moving ahead with a proposed rule to limit joint employer liability for businesses in franchise, staffing, and other contract relationships.

A recent federal appeals court ruling in the long-running legal saga that is the Browning-Ferris case may still complicate the rulemaking process by creating some new hoops to jump through. But Ring, as expected, rebuffed calls for the board to scrap the proposal and start the process fresh.

The dispute over how to read the D.C. Circuit’s Browning-Ferris decision isn’t likely to go away anytime soon. Did the panel say that the Obama board created the right joint employer test but applied it incorrectly? Or is it that the board got it wrong altogether in 2015 when it said indirect control may be enough to establish joint employment? And what, if anything, does the appeals court’s ruling mean, given that Ring told lawmakers that one option for the board is “nonacquiescence” with the court ruling? Sounds like the chairman is reserving the right to tell the D.C. Circuit to go pound sand.

Here’s one thing I feel safe reporting: The board’s Republican majority and General Counsel Peter Robb are not likely to sign onto a creative approach to joint employment that the NLRB’s general counsel’s office pushed at the end of the Obama administration.

Hassan Kanu and I recently stumbled on a 2016 NLRB advice memo in which former associate general counsel Barry Kearney said Unite Here could proceed with unfair labor practices against the owners of the Trump Taj Mahal in Atlantic City, N.J.

We reported last week that the memo raises some questions about the intersection of labor and bankruptcy law. What we didn’t get to in that story is that Kearney also said billionaire investor Carl Icahn could be tagged as casino workers’ joint employer based solely on his role as a creditor in the casino’s bankruptcy case. I’m gonna go out on a limb and say that theory won’t fly with the current board leadership.

JD: The DOL last week officially announced Katherine McGuire, its Congressional liaison, was “retiring.” Well, her retirement lasted about 24 hours. McGuire’s first day at the American Psychological Association starts today. She’ll be the association’s first chief advocacy officer, responsible for the group’s government relations work.

We’re still waiting to see who get’s McGuire’s old gig. It’s probably going to be an important role, now that House Democrats have the power to ramp up the oversight of the department.

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:, and or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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To contact the reporters on this story: Chris Opfer in New York at; Jaclyn Diaz in Washington at

To contact the editor responsible for this story: Terence Hyland at