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Punching In: Rolling Out the Red Carpet for Labor Pick Scalia

Sept. 23, 2019, 10:31 AM

Monday morning musings for workplace watchers

Overtime Timing | Labor Board Pats Head, Rubs Belly | House Goes PRO

Ben Penn: We’ve hardly had time to unpack Gene Scalia’s low-temperature confirmation hearing last Thursday and it is already looking like Scalia may get confirmed as labor secretary before this week is up. If you thought Sen. Patty Murray (D-Wash.) was already miffed at Republicans for speeding this process along, you have not heard the last of that complaint.

The Senate labor committee will vote Tuesday on whether to advance Scalia’s nomination to the Senate floor. Assuming HELP Committee Chairman Lamar Alexander (R-Tenn.) can corral enough yes voters to show up in person tomorrow, Mitch McConnell is waiting in the wings to file cloture to squeeze in a full Senate vote on Scalia just before the Senate skips town for two weeks starting Friday.

The Majority Leader’s calendar lists the Scalia nomination as eligible for potential floor action this week. By the time we meet again in this space, I very well could be referring to him as Labor Secretary Scalia.

The opposition campaign never really gained traction, as the nominee and his family—occupying many of the hearing room seats—charmed some of the panel’s Democrats last week.

The veteran Gibson Dunn partner faced questions about his background defending businesses accused of violating workers’ rights. But he made a compelling case that he also has a track record of taking the department’s worker-protection mission seriously, advising clients to eradicate poor workplace conditions, and even defending workers pro bono.

Don’t be surprised if at least a handful of moderate Democrats wind up voting “yes” on the nomination.

With his confirmation all but guaranteed, it’s probably time to pivot our focus to what a Scalia DOL will entail. For starters, there’s only a year and change guaranteed left in this administration, so the new Labor Department chief’s primary goal is to finish the regulatory agenda on time and defend the rules in court.

Two of those regulations, updating overtime and tip credit requirements, cleared the White House regulatory review shop last week. That means they could drop any day. I’m told it’s unlikely that they will be released until Scalia’s confirmation is out of the way. We’ll be hawking the Federal Register around the clock nonetheless.

Chris Opfer: The National Labor Relations Board’s new proposal to curb student worker organizing on private college campuses is slated to hit the Federal Register this morning. The regulation is the latest move in a whirlwind few weeks for the board, during which the Republican majority has made some significant updates to federal labor law and shushed those of us (ahem, me) who were wondering whether the NLRB had bitten off more than it can chew with an ambitious agenda.

The board has two primary tools in the shed for putting the Trump stamp on labor policy: case decisions and regulations enacted through the notice-and-comment rulemaking process.

In the last three weeks or so, it has used cases to address big-ticket issues like worker misclassification, the organizing of so-called “micro units” within larger groups of employees, and when companies can make unilateral changes to unionized workers’ job terms. The board has also continued to give employers more power to boot unions from company property, offered new insight on the use of arbitration agreements on the job, and signaled that it may toss out protections for workers who use offensive language on the picket line.

Meanwhile, the board is chugging along with regulations to address union access, organizing elections, student employees, and “joint employment” among business in staffing, franchises, and similar arrangements.

Chairman John Ring (R) has said the board is looking to publish more rules to give policy changes a little more permanence than those carried out in case decisions that can later be overturned. But there also appear to be some supply and demand factors at play: The board is tackling big legal questions as they come up in cases, while using regulations to address issues that may otherwise evade them.

The NLRB shifted to rulemaking on joint employment after a case decision to scrap the Obama administration’s approach got snagged in a conflict-of-interest debate. It put out a proposed rule on the student employee debate after unions looking to organize on college campuses pulled many of their cases to try to avoid a ruling against them.

Jaclyn Diaz: California Gov. Gavin Newsom last week signed Assembly Bill 5, a major piece of legislation that could force gig companies to reclassify their workers as employees. The law, which goes into effect Jan. 1, dictates workers can generally only be considered independent contractors if the work they are doing is outside the usual course of a company’s business. This law codifies a state supreme court case from last year.

Often it seems what California and New York do in terms of labor and employment trends, the rest of the country—at least in blue states—follows. The Democrat-controlled House is now moving to bring a federal bill that would codify parts of AB5 and overhaul various other labor and employment laws to the floor. The Education and Labor Committee will mark up the Protecting the Right to Organize Act (H.R. 2474, S.1306) on Wednesday.

“The anticipation is we’re going to take it up as soon as humanly possible because this is a priority for the entire caucus,” Rep. Mark Pocan (D-Wis.), co-chair of the Progressive Caucus, told me last week.

It seems everyone in the labor and business community was talking about this legislation over the past few weeks. And why not? It covers secondary boycotts, arbitration, class actions, and worker classification—just a few of the hot button labor issues facing workers and employers today.

I spoke Friday with Rep. Andy Levin (D-Mich.), who said he was heavily involved in drafting the bill, about the effort behind the scenes to get the (as of Friday) 208 Democratic lawmakers to co-sponsor the measure. Naming off the various aspects of the bill Levin said, “they’re not really controversial in the caucus. I don’t know what to tell you.”

If the House passes the proposal this year, it won’t get through the Senate. It will, however, signal that Democrats are willing to bet heavy on massive labor reform for years to come.

In the meantime, the business community is sweating as they try to turn the tide. The U.S. Chamber of Commerce is taking to the airwaves with TV advertisements directed at certain senators that haven’t backed the Senate version of the bill. The Chamber issued a video earlier this month directed at Virginia Sens. Tim Kaine and Mark Warner saying the “radical” PRO Act “would take away private ballots in Virginia union elections,” among other things. The Chamber says it will continue issuing videos like these in other parts of the country as the House gets closer to voting on the bill.

I’d be surprised if the PRO Act doesn’t come up during this Thursday’s Education and Labor subcommittee hearing on misclassification.

CO: 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: copfer@bloomberglaw.com, bpenn@bloomberglaw.com, and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer, @BenjaminPenn, 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 copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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