Punching In: NLRB, State Houses Tackle Tasks Before Year’s End

Monday morning musings for workplace watchers.

NLRB Precedents|State House Votes

Robert Iafolla: With the specter of the incoming Trump administration and NLRB Chair Lauren McFerran’s uncertain reconfirmation status haunting the board’s Democratic members, they may be running out of time to push out precedent-setting decisions before losing their majority.

The most significant policy goal of National Labor Relations Board General Counsel Jennifer Abruzzo that the board has yet to rule on is overturning the Nixon-era Ex-Cell-O doctrine, which protects companies from having to pay for their workers’ economic losses caused by illegally refusing to bargain with their workers’ unions.

The NLRB appears to have vehicles for making that change. The board in several cases severed and retained for further consideration Abruzzo’s arguments that Ex-Cell-O should go the way of the dodo.

Other notable Abruzzo targets with apparent vehicles include Velox Express, Inc., which held that employers don’t violate federal labor law by misclassifying employees as independent contractors, and Caesar’s Entertainment/Rio All-Suites Hotel, which said workers have no rights to use company email or other information technology for union purposes.

The NLRB’s Democratic majority faces pressure even if McFerran (D) wins confirmation for another five-year term, despite that Senate approval would ostensibly allow for Democratic control until 2026.

The party in the White House doesn’t always control independent agencies. For example, it took two and a half years into the Biden administration for Democratic appointees to command the Equal Employment Opportunity Commission’s majority.

But labor law observers have raised the possibility of the Trump administration violating the National Labor Relations Act by firing Democratic members to set up a GOP majority.

McFerran’s term ends Dec. 16. The Senate is scheduled to be in session for three more weeks in 2024, from Dec. 2 to Dec. 20.

Regardless of what happens with the board, the Trump administration is virtually guaranteed to sack Abruzzo and her top deputy, Peter Sung Ohr, soon after taking power.

And not only is Abruzzo’s replacement unlikely to enforce Biden board precedents, that official will look for ways to overturn them.

But setting new precedents in the shadow of a new regime—which includes the board’s recent decision outlawing captive audience meetings—has value even if control of the agency soon changes, said Anne Marie Lofaso, a labor law professor at West Virginia University.

The work that went into researching and drafting those decisions will make it easier for future Democratic majority boards to revive the precedents, she said.

“They didn’t waste all those resources,” Lofaso said.

Photographer: Nathan Howard/Bloomberg via Getty Images

Chris Marr: Worker rights and business groups are pressing for timely statehouse action before 2024 ends, particularly in Michigan where advocates for both sides hope to get ahead of next year’s change in party control and expanded minimum wage and sick time laws.

Michigan legislators are considering adjusting the minimum wage and paid sick leave laws due to take effect Feb. 21 following a July decision by the Michigan Supreme Court. That ruling resolved a dispute over a 2018 ballot measure, and struck down amendments that Republican lawmakers at that time adopted to make it more business-friendly.

Now, three months before restored ballot measure language takes effect, there’s support to revise portions of the sick leave law, such as clarifying it doesn’t cover independent contractors, said Amanda Fisher, Michigan director for the National Federation of Independent Business. But difficult dynamics in a lame duck session make it unclear which bills can win passage.

Business interests hope to see the sick leave law adjusted further to exempt small businesses and remove the right of action that will let workers sue for alleged violations, Fisher said.

“We do have a lot of concerns that it’s going to have some unintended consequences, because of how it’s written,” she said.

Michigan lawmakers also are considering a bill to preserve the tip credit, letting restaurants and other employers continue paying service workers less than minimum wage if their tips make up the difference. If legislators don’t revise it, the ballot-measure language will gradually phase out the tip credit, requiring employers to pay tipped workers the full state minimum wage plus tips starting in 2030. The ballot language also calls for raising Michigan’s standard minimum wage to $12.48 hourly next year, and increasing it annually until it hits $14.97 in 2028.

Worker advocacy groups including One Fair Wage are urging Michigan to allow the tip credit phase-out, while calling on other states including Illinois and New York to end their lower tipped minimum wages.

Allowing workers to rely primarily on tips for income promotes harassment and discrimination in service jobs, said Saru Jayaraman, president of One Fair Wage. And the return of President-elect Donald Trump to the White House and a Republican majority in Congress adds urgency for state and local policymakers to boost worker protections, she added.

Massachusetts voters rejected a ballot measure to phase out the state’s tip credit this month—a policy loss for One Fair Wage that Jayaraman attributed to the restaurant industry’s heavy spending in opposition.

Michigan lawmakers are considering separate bills to make unemployment insurance benefits more generous and impose tougher penalties on child labor violations.

Illinois legislators also returned to the statehouse for a brief fall session, which ended Nov. 21. Among the handful of approved bills, they passed a plan to phase out the use of subminimum wages for workers with disabilities, joining a bipartisan trend among states to end the decades-old practice.

New Jersey lawmakers are scheduled for at least one more session day in December. Workplace-related bills that could receive votes include proposals to regulate artificial intelligence tools used in hiring decisions, ban discrimination based on height and weight, and expand the state’s ban on “captive audience” meetings to include managers’ discussion of union membership.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.