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Punching In: Slowing Down the DOL Apprenticeship Train

Nov. 12, 2019, 10:46 AM

Morning musings for workplace watchers

Apprenticeships & Appropriations| Tough Trade Talk | Arbitration Nation

Ben Penn: With National Apprenticeship Week upon us, Team Trump surely would like the public to believe the Labor Department has cleared up an appropriations error surrounding the administration’s principal job training initiative.

The DOL recently admitted to misusing about $1.1 million on the Industry-Recognized Apprenticeship Program that still hasn’t been finalized, dipping into a pot of money designated for a separate apprenticeship program that’s been around for decades. The snafu took place under former Labor Secretary Alexander Acosta, based on orders from an ex-policy adviser. The department says it already has taken multiple steps to correct the issue. Besides, the $1.1 million in question is a drop in the bucket relative to the DOL’s overall budget.

Nothing left to see here, right?

Were it only that simple.

Not everyone’s certain the DOL has resolved the spending mistake. Lingering questions could slow the White House’s effort to put together a final rule to establish the new, industry-led job training model.

We already know the department’s inspector general looking into the potential budget violation and the Democrat-controlled House Education and Labor Committee is continuing its oversight requests.

Now we can add North America’s Building Trades Unions to the list of groups demanding answers. The construction union umbrella organization is one of the few labor groups that have found a way to work on certain issues with the Trump White House. Lately, however, it’s using the IRAP proposal to ramp up attacks on this administration.

Mike Monroe, chief of staff of the building trades group, called news of the misspent money “frustrating.” The department’s Employment and Training Administration vowed during the Acosta regime that it wouldn’t use the new IRAP system to undermine the longstanding registered apprenticeship system, a crucial job training source for the building unions. Monroe wants to be sure the department is weighing all of the public feedback it received on a proposed rule to establish the IRAP system.

The union led a public comment blitz slamming the industry-friendly IRAP proposed rule, with thousands of blue-collar union members opposing the rule.

“If there are ethical lapses in the misuse of funds then we’re rightfully concerned there may well be ethical lapses in the review and consideration of all the public comments—which is to say they’ve already made their minds up here,” Monroe said. “Our membership is watching this issue really closely” and “we are highly concerned that this undefined process that is now being funded inappropriately, it seems, may undermine their ability to safely earn a living in the construction crafts.”

Even if only $1.1 million was misspent, the ongoing scrutiny offers a convenient vehicle for NABTU, Democratic lawmakers, and others on a mission to stop the White House apprenticeship push in its tracks.

Jaclyn Diaz: Democrats head into this week facing pressure and criticism from all sides—Republicans, labor unions, and businesses—to get the new trade deal with Mexico and Canada approved before the end of the year. Talks on the United States–Mexico–Canada Agreement are where they’ve been since summer: stuck on labor and environmental enforcement provisions.

Unions are threatening big opposition if their concerns aren’t met. Twelve leading labor unions—including the Steelworkers, the United Auto Workers, and the United Mine Workers of America—warned House lawmakers that the current iteration of the deal doesn’t meet the needs of members and they’ll oppose it if necessary.

House Speaker Nancy Pelosi (D-Calif.) and other Democrats say a resolution on the stalled USMCA is coming soon. Before the recent weeklong recess, two Democrats from union-heavy Pennsylvania seemed less optimistic.

Pelosi and other Democrats leading the USMCA negations haven’t made any promises that labor gets to “OK” the deal before it moves to the House floor, according to Reps. Susan Wild and Mike Doyle. I spoke with both lawmakers before the recess.

“I haven’t spoken to anybody who is aware of any” assurances about an organized labor review of the deal, Wild said.

Doyle, who represents the Steelworkers’ stronghold of Pittsburgh, said the deal just isn’t where many lawmakers want it to be.

Chris Opfer: When a group of Uber drivers last week filed a class action against the rideshare company for allegedly undercutting fares, it was the latest sign that the debate over mandatory arbitration is far from over.

The Supreme Court put its stamp of approval on arbitration agreements—and the class-action waivers often buried in them—last year in the landmark Epic Systems decision. But that hasn’t stopped lawyers for workers testing possible holes in the Federal Arbitration Act. That includes the exemption for transportation workers engaged in interstate commerce that lawyers looking to sue on behalf of some 96,000 Uber drivers are banking on to keep their case in federal court instead of litigating each drivers’ claims separately and behind closed doors in arbitration.

But even if the drivers can get around the FAA, they may still be required to arbitrate their claims because the agreements may be enforceable under state law.

New York, New Jersey, Vermont, and Maryland all recently passed laws banning mandatory arbitration, but those prohibitions are limited to sexual harassment cases. At least one of the laws, in New York, is already being challenged in federal court as violating the FAA.

But what about arbitration agreements for people like the Uber drivers, who say they’re not covered by the federal law? We could soon find out how those cases will be treated in California.

The Golden State is home to a new law banning mandatory arbitration agreements as a condition of employment. It’s also likely to be the center of fresh lawsuits over the classification of Uber drivers as independent contractors when another new law (AB-5) takes effect in January.

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, jdiaz@bloomberglaw.com, and bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer, @jaclynmdiaz, and @benjaminpenn.

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: Martha Mueller Neff at mmuellerneff@bloomberglaw.com