Monday morning musings for workplace watchers

NLRB Nominations Long Game| House Priorities | Worker Centers Watch

Chris Opfer: Conversations on Capitol Hill are continuing over Mark Pearce’s (D) nomination to return to the National Labor Relations Board. Everyone involved in those talks seems to have a different notion about who’s actually pushing a possible deal and who’s just listening. Still, the idea remains to package Pearce with several Labor Department picks waiting to have their tickets punched by the Senate.

Business lobbyists are working overtime (nice billable hours, if you can get them) to stop that from happening. The opposition is twofold. Pearce’s critics still have their dander up about the various worker-friendly decisions he issued as NLRB chairman during the Obama administration. They’re also worried he’d be in line to return to the leadership role if a Democrat won the White House in 2020.

The anti-Pearce party is pitching a long game. They’d like to see the seat held open for a while, the same way Harry Johnson’s Republican slot on the board went unfilled for about two years during the Obama administration. The White House and Senate could then talk turkey about NLRB nominations late next year or in mid-2020, when other seats start to open up. Democrat Lauren McFerran’s term ends in December 2019 and Republican Marvin Kaplan’s stint sunsets in August 2020. That would give everyone involved a better sense of which party may be controlling the board after the next presidential election, some of Pearce’s critics say.

Nothing will be certain on the nomination front until the hamsters that run in tiny wheels in the basement of the Capitol to power the building get a rest and lawmakers go home for holidays. The way some folks tell it, Pearce could be confirmed as senators are putting on their coats and heading out the door for the end of the year.

I spoke with Hassan Kanu about the latest nominations news in this week’s Punching In podcast. Terminal readers can find it here: {NSN PJHOD06KLVRC}.

JD: Last week I wrote two stories that looked at the role of arbitration agreements in the workplace. One noted Labor Solicitor Kate O’Scannlain’s attention to lawsuits involving employers with arbitration agreements. The other examined who has adopted these policies and why.

It’s an interesting issue and one I look forward to following. Here are a few interesting comments that I didn’t get to add to either story last week that I think are worth noting.

Although the pressure is high in some places to rid the workplace of mandatory arbitration for harassment and assault claims, Chris Murray, an attorney with Ogletree Deakins, actually cautions employers about doing so.

“I think it’d be risky for employers to begin excluding sexual harassment claims from arbitration based on the false premise arbitration is improper for certain claims,” he said. “Doing so could easily lead to a slippery slope, with plaintiffs’ attorneys demanding other claims also be excluded such as racial harassment, discrimination, and wage and hour claims. Before long, no claims would be arbitrable.”

And just because employers can use an arbitration agreement doesn’t mean they should, Gary Friedman, an attorney with Weil, Gotshal & Manges LLP, said.

“There are plenty of down sides for arbitration and I don’t recommend it for all clients,” he said. If the goal is to limit risks on class action and public exposure, then go for it, he says. On the flip side, once a case heads to arbitration, it’s hard to get it dismissed or appealed.

“There’s no meaningful right of review for arbitration. If an arbitrator gets it wrong, then you are stuck with an erroneous decision,” Friedman warns.

Meanwhile, Uber is reportedly facing individual arbitration demands from more than 12,500 drivers. Handling each on a case-by-case approach could get expensive.

CO: You may have missed it that the Supreme Court pushed back an initial conference on the trio of cases asking whether sexual orientation and/or gender identity bias are forms of sex discrimination already banned by federal law. We’re still waiting to hear when the justices will put those cases on the conference calendar for next year. In the meantime, House Democrats are likely to wade into the debate.

I’m told that Democrats plan to make the Equality Act a legislative priority early in the new year. It would ban LGBT discrimination not only in the workplace, but also in public accommodations (hotels, restaurants, wedding cakeries). The bill is likely to move in what will be a Democrat-controlled House next year. What’s not clear is where the measure goes if and when it lands in the Senate. There may be enough votes to pass it—10 Republicans crossed the aisle to pass a LGBT workplace discrimination bill in 2013—but Majority Leader Mitch McConnell (R-Ky.) would have to allow the legislation to get to the floor to test that support.

We’ll be watching to see if the measure is tagged somewhere between H.R. 2 and H.R. 10, a sort of symbolic designation often reserved for priority bills.

JD: There’s been a push by certain groups for the DOL’s Office of Labor Management Standards to launch investigations into worker centers. Those are worker advocacy organizations often criticized by conservative groups as unions in sheep’s clothing.

Given that pressure, I wanted to see what the OLMS has been up to since Jan. 20, 2017. I submitted a Freedom of Information Act Request to get information on which groups have targets on their backs. Check back this week to see what I found.

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 on any and all labor and employment news: copfer@bloomberglaw.com, and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer and @JaclynmDiaz.

See you back here next Monday.

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