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Punching In: Trump’s Job Training Plan Takes Center Stage

June 24, 2019, 10:10 AM

Monday morning musings for workplace watchers

All About IRAP | Stanton’s Marching Orders | SCOTUS Suits Up

Jaclyn Diaz: A wise man once said: “Hold on to your butts.” It’s already panning out to be a busy week in the labor world.

Those of us eagerly awaiting the Labor Department’s reveal of the details surrounding the industry-led apprenticeship program can stop biting their nails in anticipation. Details for the long-delayed program will be published later this morning.

A DOL official said the purpose of the new program is to create opportunities for “new industries” that have traditionally not been involved in the agency’s existing registered apprenticeship system. That includes the information technology and advanced manufacturing sectors, rather than construction and the military, he said. The details will likely be music to the ears of building trades unions, which had threatened a fight if the Labor Department allowed construction industry groups to participate in the new program.

The department may avoid attacks from construction labor groups, but the proposal is still unlikely to assuage concerns of other critics. Namely, those who feel that the wide latitude given to organizations and businesses to develop their own programs without government intervention potentially puts workers at risk. I have more on the IRAP roll out here.

In other news, Congress will be graced by the presence of two powerful women next week: me and Ivanka Trump.

Kidding (mostly…) about the first one. The First Daughter, also a senior White House advisor, will meet with members of the Senate in her second trip to the hill in as many weeks. She last visited the Capitol on June 12 for a roundtable discussion on the administration’s National Strategy on Women, Peace, and Security.

Ivanka Trump will be meeting with lawmakers on both sides of the aisle to discuss the administration’s workforce and higher education goals. It’s no coincidence that the talks coincide with the IRAP public release and the upcoming anniversary of the creation of the National Council for the American Worker.

The first stop today will be to brief the House GOP Whip team on the administration’s progress on “workforce development” at the invitation of Minority Whip Rep. Steve Scalise (R-La.), according to a White House representative. Later this week, she’ll meet with Sens. Johnny Isakson (R-Ga.) and Gary Peters (D-Mich.) to to talk more job training.

Ben Penn: Labor Department Wage and Hour Administrator Cheryl Stanton’s decision to seize her agency’s investigative power will be on trial today.

A Labor Department Administrative Law Judge in Cincinnati will have a chance to grill a representative for Stanton—likely WHD Deputy Director for National Operations Patricia Davidson—about whether the newly arrived division chief had the authority to revoke her staff’s investigative powers “at her sole discretion,” as ALJ Steven Bell put it in his hearing order. The action gets underway at 10 a.m. EST. I’ll have the story here at Bloomberg Law later today.

After getting off to a shaky start in staff relations, Stanton sent her nearly 2,000 WHD employees across the country an email last week laying out her priorities. The text of that email made its way to my inbox as well. After reviewing Stanton’s description of her key WHD priorities, I’m not convinced she’s going to smooth over staff discontent any time soon.

Stanton’s first priority is “leveling the playing field,” by ensuring employees get paid for their work through a combination of enforcement and compliance assistance. “As you work to deliver on this mission, I know that staffing numbers have been a concern for many of you,” Stanton says, before notifying her team that she plans to hire 25 new investigators.

Priority No. 2, “focusing on efficiencies,” could run counter to the notion that she’ll be bolstering her agency’s presence. “Eliminating waste in every form—be it in time, money, or physical resources—is a priority,” Stanton wrote. To that end, she announced that some employees at the national and regional offices will be moving out to the field to conduct investigations.

It appears she may be asking her staff to do more with less.

Stanton only has so much wiggle room to work with in the budget set by Congress, but staffing numbers have already been on the decline. The division is down to 775 investigators as of May, a DOL spokeswoman told me. That means the agency’s troops on the ground patrolling workplaces for evidence of shorting workers’ pay have fallen 20 percent from the fiscal year 2016 total of 974. Attrition is an ongoing problem. WHD has already lost 60 investigators since the last fiscal year.

Perhaps 25 new hires is just the start, and Stanton will boost that level gradually as her team gets trained up. But if the agency wants to follow up on last year’s record-setting back pay collection, 25 more investigators alone will not likely cut it. The office staff Stanton will deploy in the field have also been playing a role closing out investigations. So who replaces them?

Chris Opfer: It could be a big morning for the U.S. Supreme Court. The justices look to be on the verge of putting a fork in the Auer doctrine, under which courts defer to agency interpretations of their own regulations.

That would have a big impact across the federal government, including at the Labor Department, National Labor Relations Board, and Equal Employment Opportunity Commission. It could also spark new legal battles over the meaning of existing regulations and require agencies to do more notice-and-comment rulemaking to clear up any questions.

Meanwhile, briefs from lawyers representing workers in the three big LGBT discrimination cases before the court are due Wednesday. Those cases, which have already created a rift in the Trump administration, explore whether sexual orientation and gender identity bias are forms of sex discrimination already banned by Title VII of the 1964 Civil Rights Act.

I spoke in recent weeks with a handful of employment lawyers from both the worker and management side, all of whom said they’re rooting for the court to rule in favor of coverage. They all also acknowledged that they’re hitching their wagons to one pony: Chief Justice John Roberts. Will the George W. Bush appointee cement himself as the high court’s new swing vote by breaking from the conservative wing and siding with the liberals? We may soon find out.

SCOTUS could also decide any day now whether to take up at least four labor and employment cases. That includes a challenge to a California ordinance requiring businesses to enter “labor peace” agreements with any union that asks for one. The court also has cert petitions pending on disputes over whether flight attendants can sue for state and local wage law violations, reviewing a law forcing Washington home care operators to accept exclusive union representation, and taking a closer look at pre-hire labor agreements for construction companies on public projects in California.

Bloomberg Law will have the news from the Supreme Court this morning.

JD: Also happening next week: The House Education and Labor Committee meets tomorrow to talk about “the misapplication of the Religious Freedom Restoration Act.” The Subcommittee on Higher Education and Workforce Investment is scheduled to hold a hearing Wednesday on the Job Corps Program and the potential effects of the Trump administration’s (now canceled) plans to end the Agriculture Department’s involvement in running some of the program’s centers. A separate subcommittee later the same day will hold a hearing on the Public Service Freedom to Negotiate Act, which aims to protect state and federal workers’ ability to unionize.

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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