Monday morning musings for workplace watchers
Slow Restart | Restored Quorums
Parker Purifoy: Restarting federal labor agencies after the longest government shutdown in US history hasn’t been smooth sailing, workers tell Punching In.
Many Labor Department workers had technical issues starting their computers as they tried to get back to work after weeks of furlough, a DOL employee said. The technical difficulties delayed the work of some staffers.
Labor Secretary Lori Chavez-DeRemer greeted returning employees via email but didn’t welcome staff in person or through a virtual meeting, as previous DOL leaders have done following government shutdowns, the worker said.
In her email to DOL staff Thursday morning, the secretary said she was “eager” for them to get back to work.
“Our focus remains on advancing this administration’s goal to strengthen our workforce, expand opportunity for all Americans, and help build the greatest economy in the world,” she said. “The work each of you does directly contributes to this important mission.”
The DOL will have its hands full as workers get back up to speed.
Field personnel with enforcement duties will likely focus first on identifying new cases and disputes that have come to the department and prioritizing the most urgent ones, said Paul DeCamp, a wage and hour attorney with Epstein Becker Green and former administrator of the Wage and Hour Division under President George W. Bush.
The other agencies will be “assessing whether any goals have changed or any projects have become more or less pressing over the past several weeks,” he said.
The extended shutdown ground rulemaking to a halt, potentially holding up the DOL’s extensive agenda to revamp over 60 rules around highly-anticipated areas including joint employer classification and minimum and overtime wages.
This summer’s de-regulatory measures also targeted more than two dozen policies at the Occupational Safety and Health Administration and the Mine Safety and Health Administration.
During the shutdown, the Equal Employment Opportunity Commission regained quorum and a Republican majority with the swearing in of Commissioner Brittany Panuccio. Now, the commission is expected to move ahead with votes to change key Biden-era policies.
Chair Andrea Lucas indicated the commission will vote to rescind or modify the agency’s Pregnant Workers Fairness Act rules and anti-harassment guidance that included LGBTQ+ protections.
Commissioner Kalpana Kotagal, a Biden appointee, described the impending guidance rescissions as “a real tragedy” at a conference hosted by the American Bar Association on Nov. 13.
“Employers and HR professionals have taken time to learn the framework and the nuances of the regulation,” she said of the rules around the PWFA. “A wholesale revision, particularly one that weakens workers rights, would be misguided in my view.”
The EEOC’s restored quorum also allows the commission to move ahead with Lucas’s litigation agenda, which is expected to include scrutiny of corporate diversity programs.
Ian Kullgren: The other board to regain quorum during the shutdown is the Merit Systems Protection Board.
GOP nominee James Woodruff was confirmed by the Senate on Oct. 7 and now the board can start tackling the pile of cases that couldn’t be considered by just one board member.
A fully functional MSPB could alter the terrain for litigation against President Donald Trump’s federal workforce cuts and bolster arguments that challenges to those terminations must go through administrative processes before the court system.
They’ll have their work cut out for them. According to Daniel Rosenthal, a worker-side attorney with James & Hoffman, the MSPB has received more than 18,000 appeals from workers disputing layoffs, firings, or other adverse employment decisions since the start of Trump’s administration. This is more than double the amount of cases the agency receives in a typical year.
Investigators at the Office of Special Counsel, who examine and prosecute allegations of prohibited personnel practices within the government, are also back online. But OSC is still lacking Senate-confirmed leadership, after nominee Paul Ingrassia got yanked.
Deadlines at many agencies automatically paused for the duration of the shutdown, exempting petitioners from filing for extensions. As of Nov. 13, the clock restarted.
Some attorneys said they were still waiting updates.
“I’m not sure how well the notice has been from the government thus far,” said Michael Fallings, a managing partner with Tully Rinckey, “Some judges—administrative law judges—have issued orders, but it hasn’t been consistent.”
The National Labor Relations Board will be able to resume policing federal labor law and processing union requests for representation elections. However, the board didn’t regain quorum during the shutdown, meaning it can’t issue decisions because it remains two members shy of the minimum number needed to act.
Reinforcements are on the horizon. A Senate panel cleared one nominee to fill an open seat, and its set to consider a second on Nov. 19. Candidates with committee approval are eligible for confirmation votes in the full Senate.
We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.
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