Monday morning musings for workplace watchers

About that Pearce Deal| Overtime on Campaign Trail| How the Employee Rights Act Went Wrong

Jaclyn Diaz: For all you suffering from fall regulatory agenda antici--pation (any Rocky Horror fans out there?), the wait may soon be over.

We’re hearing the Trump administration could release the agenda as soon as Wednesday.

If we’re to take the recent comments by Labor Secretary Alexander Acosta and Office of Regulatory Affairs Administrator Neomi Rao to heart, we should expect deregulation to be a major theme. I’ll be keeping an eye out for updates to several key policies.

  • Overtime: The agenda should give us a better idea of when the DOL expects to unveil a proposed overtime rule (always on our mind). A new overtime rule was scheduled for an early 2019 release date in the spring agenda. Given the recent spate of public listening sessions, I wonder whether it’s still on track.
  • Joint Employer: Acosta has maintained that the department is in the process of rolling out a joint employer rule. A Politico report from a couple of weeks ago said a document showed the DOL was considering releasing guidance or an administrative interpretation on the issue—neither of which is legally binding, unlike a rule. At a Chamber of Commerce event Oct. 3, Acosta said that document never made it to his desk and didn’t reflect his views on what the department should do on joint employment. My money is on a rule. Watch for it in this week’s agenda.
  • Labor Finances: While we’re taking bets, I’m expecting an update on proposed rules that would make financial reporting stricter for labor organizations. The rules, previously scheduled for June and December this year, would create new requirements for union affiliations and union trusts. The Office of Labor-Management Standards will be spearheading the work on those proposals. It’s been pretty quiet out of that office lately, but now that the leadership is fully in place, I’m betting we’ll see something soon.

I talked with Bloomberg Law’s Hassan Kanu about the upcoming regulatory agenda in this week’s Punching In podcast.

Chris Opfer: The Senate last week confirmed a slew of Trump nominees—filling everything from judge seats to ambassadorships and positions on the Privacy and Civil Liberties Board—just before skipping town for the rest of the month. The move gives Democrats facing tight reelection battles the chance to go back out on the campaign trail two weeks earlier than scheduled instead of sticking around D.C. to vote on nominees who would eventually be confirmed anyway, even if the process were dragged out.

Not on the list of nominees who made it past the finish line: former National Labor Relations Board Member Mark Gaston Pearce (D), who was tapped for another term over sharp criticism from the business community. So what happened to the grand deal that was supposed to send Pearce back to Half Street in exchange for Dems agreeing to speed up confirmation votes for other labor-related nominees? It depends on who you ask.

Some sources tell me the agreement was simply to get Pearce renominated, not confirmed, in exchange for movement on other nominees, including Gordon Hortogensis. Mitch McConnel’s brother-in-law, and Trump’s pick to run the Pension Benefit Guaranty Corporation, got a long-awaited confirmation hearing last month.

Others say that whatever deal was hatched could be carried out in the lame-duck session after the November elections.

Here’s what we know: Business lobbyists are working overtime to keep Pearce from getting another five years on the board. They’re courting a handful of Republicans, trying to get one or more lawmakers to put a hold on the Pearce nomination. McConnell has so far honored a similar hold on EEOC Commissioner Chai Feldblum, requested by Mike Lee (R-Utah) and others.

Pearce’s critics are focusing the sales pitch on recent moves by Senate Democrats and others to get NLRB Member Bill Emanuel (R) off certain cases and out of the rulemaking process for the agency’s new joint employment regulation. If Pearce rejoins the five-member board and Emanuel recuses himself from some of those matters, the NLRB would be deadlocked, with two Democrats and two Republicans.

JD: The deluge of political attack ads will be over soon with Election Day just four weeks away. (I’m mostly thankful for us in the DMV area, that means no more of the Barbara Comstock and Jennifer Wexton back and forth over the airwaves). Still, some ads from key swing states recently caught my eye.

A 2016 lawsuit by a handful of state officials that wound up blocking the Obama overtime rule is coming back to haunt some attorneys general who joined in on the case and are now running for governor.

Paul Sonn, the director for NELPAction, tells me that several Democratic candidates and unions are running ads attacking Republican opponents for their involvement in the lawsuit. Critics of the overtime rule said it would kill jobs by driving up business payroll costs. But some political candidates accuse the folks who sued to stop the rule of taking money out of their working constituents’ pockets.

In Ohio, the Rich Cordray gubernatorial campaign released a video attacking Mike DeWine for joining the suit. In Michigan, the Carpenters’ Union is running a Facebook campaign against Bill Schuette for the same reason.

Overtime could be an important issue for middle-class voters, Sonn said. We may see in just a couple of weeks whether the ads have any impact.

CO: House Republicans have moved an assortment of legislation to undo the Obama labor agenda and update workplace laws, only to run into an invisible brick wall in the Senate. The chamber’s 60-vote requirement is a tough nut to crack, given that the GOP holds 51 seats in the Senate and labor issues don’t often attract a lot of bipartisanship.

Among the measures likely headed to the graveyard for now (they’ll be reintroduced next year) are bills to restrict joint employer liability, slow down labor union elections, limit the worker contact info that employers must give unions before an election, and remove casinos and other businesses operating on tribal land from the NLRB’s reach.

Given all the momentum the GOP had in the House, some may be surprised to learn that the Employee Rights Act—a legislative wish list of sorts for Republicans and business lobbyists—didn’t even get a committee markup or vote. It turns out midterm jitters may be to blame.

The bill would allow businesses to push to decertify a union anytime there’s at least 50 percent turnover in the bargaining unit, slow the union election process and require secret ballots, require a majority vote for strikes, and limit how union dues can be spent.

I’m told the ERA stayed on the shelf because some Republicans on the Education and the Workforce Committee didn’t want to go out of their way to stick a fork in organized labor’s eye over a bill destined to die in the Senate. Especially not in the run up to the midterms, in which every House seat is up for election.

Glenn Spencer, a senior vice president at the Chamber of Commerce, says other factors are to blame. The bill was revised in July in response to concerns from the Chamber and other groups about a provision that would have automatically started the union decertification process when a bargaining unit hit 50 percent turnover. Spencer said that could have caused chaos for employers by triggering pension withdrawal requirements or forcing a decertification battle in the middle of a busy stretch.

“There just wasn’t enough time for members to familiarize themselves with the changes,” Spencer told me recently.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. Looking for the latest on life after Janus for labor groups? Robert Iafolla has the goods on union fee clawback lawsuits hitting courts throughout the country.

Until next week, feel free to reach out to us: copfer@bloomberglaw.com and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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