Monday morning musings for workplace watchers

FMLA Fine Tuning | Labor Department Goes Long | They Still Wanna Talk with Alex

Chris Opfer: The Labor Department surprised some folks (including a few inside the Frances Perkins building) when it announced last week that it’s considering doing some tinkering with the Family and Medical and Leave Act.

The DOL hasn’t updated regulations interpreting the law, which allows workers to take up to 12 weeks of unpaid leave for a serious health condition, the birth of a child and other reasons, in about a decade. Department officials had not given any indication that they were interested in going back to the drawing board. That’s a sign that this regulatory initiative may have the White House’s—specifically labor policy adviser James Sherk’s—fingerprints all over it.

The department is playing it close to the vest in terms of what kinds of changes may be in the cards. It said in a Spring regulatory agenda notice that the DOL plans to ask for public feedback on how to “better protect and suit the needs of workers” and “reduce the administrative and compliance burdens on employers.”

Fortunately, Sherk has already offered his thoughts on how the FMLA should be overhauled. The Heritage Foundation alum in 2007 wrote an 82-page report on “unscrupulous” and “irresponsible” workers who abuse the family and medical leave law.

Sherk then proposed a number of reforms, including sharply limiting the “serious medical conditions” covered by the FMLA and giving companies more power to investigate whether a worker using FMLA leave really has such a condition. He also said regulators should restrict the situations in which workers can use FMLA intermittently, like when a health condition flares up, to combat misuse.

We will have more on that this week.

Ben Penn: The Spring agenda left us with plenty of other DOL items to chew on. For instance, what’s with all the first-time rulemaking appearances buried in what was once known as the regulatory graveyard? Perhaps it’s time we retire that term for the agenda’s “long-term actions,” or list of ongoing rulemakings that an agency doesn’t expect to release within a year.

The Obama-era DOL would commonly post rule proposals as long term when they wanted them to fade away, after having initially announced them as more imminent priorities, a former agency official told me. Perhaps the Trump administration is taking a different approach.

Of the 22 longterm rules under development across DOL, eight are making their debut appearance on the regulatory agenda. Five of those eight early-stage rulemaking projects are tagged as “deregulatory” under President Donald Trump’s controversial one-in-two-out executive order from early in his administration. Deregulatory in this context means they’re projected to save public costs, not necessarily that they are unwinding a previous rule.

It’s hard to imagine that agencies already under pressure to complete more time-sensitive rules are going to have the bandwidth to make much progress on the newly unveiled actions before the next presidential inauguration in January 2021. The list of longer-term deregulation includes a series of wage-and-hour rules that the management bar wanted out the door yesterday. Lawyers may need to put on their Make America Great Again hats and stump for Trump 2020 if they want these initiatives to see the light of day.

That’s not to say the long-term plans should be dismissed altogether.

The regulatory agenda published a week after news broke that some factions of the White House were fed up with Acosta’s chief of staff Nick Geale because they believed he was stalling the DOL rollback of burdensome rules. (Geale’s last day at the Perkins Building is this Friday, by the way.) The point is, there are people at 1600 Penn and the Eisenhower Building next door who haven’t been satisfied with the department’s progress thus far. Any new measures designed to make life easier for employers can likely be considered DOL priorities at this point, regardless of how they’re categorized.

The more interesting question is whether the burst of new deregulation is coming from the Labor Department or the White House. I’ll explore more on that later this week.

One more DOL note, the Wage and Hour Division said goodbye last Friday to policy adviser Steven Begakis, meaning the agency’s already small political team is now even thinner. Begakis, whose background in the religious right we detailed last year, will join Consovoy McCarthy, the conservative litigation boutique that’s been defending Trump from Democratic House subpoenas.

Jaclyn Diaz: The public outrage over what some call Secretary Acosta’s lax handing in the Jeffrey Epstein teen sex trafficking plea deal some 10 years ago seems to come in fits and starts. That public anger towards Acosta is at a momentary lull as court cases and a Justice Department investigation linger, but one group of lawmakers certainly hasn’t forgotten. The Women’s Caucus is biding its time as the federal court case and Justice Department investigation play out.

A handful of Democrats, including Women’s Caucus Chairwomen Jackie Speier (D-Calif.) and Lois Frankel (D-Fla.), joined progressive groups calling for Acosta to resign after Miami Herald reported on the child sex abuse allegations against Epstein and the plea deal. Those calls grew louder when a federal judge said Acosta and other prosecutors violated the law by failing to keep victims and their family members aware of the plea deal that landed him behind bars for 13 months. Since then, the calls for a resignation haven’t gone further than a letter to the White House.

I caught up with Speier last week and she doubled down on plans for the Women’s Caucus to bring Acosta in for a hearing. Frankel told me last month the hearing has yet to be scheduled because caucus members are “waiting for the federal process to conclude.”

The Women’s Caucus isn’t likely to drop the Epstein questions anytime soon, even if the federal lawsuit is resolved and the DOJ quietly wraps up its investigation. A hearing on the Epstein case (potentially including testimony from his alleged victims) threatens to cloud Acosta’s tenure well into the future. Squabbles with Democrats about overtime pay, joint employer liability, and “regular rates” are one thing. What some are calling a “sweetheart” plea deal for a convicted sex offender accused of trafficking teenagers out of his Palm Beach mansion is another.

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.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate, and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.