Monday morning musings for workplace watchers

The NLRB Case That No One Wants to Touch | Ragin’ Rosa’s Policy Riders | A Smidge of Bipartisanship on Equal Pay

Chris Opfer: Remember Kent Hospital? The pressure may soon be ratcheted up on the National Labor Relations Board to resolve the long simmering legal dispute testing limits on unions’ use of nonmember “fair share” fees for political lobbying. The NLRB has until March 1 to respond to a request for a federal appeals court to order the board to finally decide the case.

It’s safe to say that this is a case—stemming from a hospital employee’s 2010 unfair labor practice complaint against United Nurses and Allied Professionals—the board would probably rather avoid. It raises a tricky legal question: Can unions use fees paid by nonmembers covered under a collective bargaining agreement to fund lobbying on legislative issues related to bargaining and contract negotiation? In Kent Hospital, the union lobbied on bills related to hospital funding and other issues. One measure would have banned medical employers from requiring workers to put in more than 40 hours a week.

A Democrat-majority board in 2012 ruled that unions can use “fair share” fees for lobbying if the activity is “germane to the union’s role in collective bargaining.” But it also asked the public to weigh in on what kind of lobbying expenses fit that description. More than six years later, we still don’t have an answer.

The board’s ruling was squashed after the U.S. Supreme Court held in 2014 that former President Barack Obama’s Senate recess appointment of board members—including Democrats Richard Griffin and Sharon Block, who joined in the Kent Hospital decision—was unconstitutional.

Bloomberg Law’ Hassan Kanu sat down with Adam Pulver from Public Citizen to talk overtime, immigration, and workplace injury reporting in this week’s Punching In podcast.

Jaclyn Diaz: I was roaming the halls of Capitol Hill earlier this week and caught up with Rep. Rosa DeLauro after she spoke at a hearing on the Paycheck Fairness Act. (The other half of my time there was spent looking for the Dunkin’ Donuts in the Longworth Building maze. My New England heart craves their iced coffee even on the coldest of days.)

Democrat DeLauro chairs an Appropriations subcommittee that holds the purse strings for the Labor Department. We’ll be entering a new government funding season soon enough, once the White House releases its already delayed fiscal year 2020 budget proposal. It’s expected around March 11.

So now that DeLauro is leading the subcommittee, what can we expect from her in terms of the DOL budget? Despite the Connecticut lawmaker’s opposition to some recent DOL proposals, she said she’s approaching the budget season with an open mind. But DeLauro also made clear she’s interested in undoing some of the department’s recent regulatory activity.

The subcommittee’s Democrats plan to “put forward a positive agenda” looking at “areas that will make a difference to working families,” she told me. They’ll also be taking a look at recent regulatory moves, she said.

On the docket: hot ticket items like the update to federal overtime pay requirements, worker safety, and child labor, she said.

DeLauro has been among the critics of the DOL’s teen health-care worker proposal, which would allow employees under the age of 18 to operate a patient lift without supervision. DeLauro was one of five lawmakers that signed off on a letter in January asking DOL Inspector General Scott Dahl to launch an audit into the department’s rulemaking process for the patient lift rule—which he later did. She has also recently criticized the department for lackluster oversight on child labor and federal contractors.

It also sounds like DeLauro’s willing to give the agency more dough to play with, saying, “Quite frankly the DOL budget has been shortchanged.” DeLauro is a big proponent of job training (much like the White House has been of late especially with its newest Workforce Advisory Board) and specifically the agency’s Job Corps program. That’s DOL’s most expensive job training program. It’s safe to assume she’ll pursue a boost in that area of the budget.

CO: Here’s a newsflash: The Paycheck Fairness Act isn’t going to be landing on President Donald Trump’s desk for signature anytime soon. The legislation, which DeLauro has been pushing for more than two decades, may very well be on its way to passage in the Democrat-controlled House. It’s dead on arrival, however, in the Republican-controlled Senate.

GOP lawmakers and business community representatives have long derided the measure, which would shift the burden to employers to prove that any pay disparities between workers doing similar jobs is justified by business necessity and would uncap punitive damages awards in pay discrimination cases.

“This bill would require that it not just be job related but justified by business necessity and that there was no alternative,” Seyfarth Shaw lobbyist Randy Johnson recently told me. “It creates a situation where the employer’s defense obligations are impossible to meet.”

But there’s at least one sliver of the legislation on which both sides seem to agree: That workers need more access to salary information to ensure that they can properly defend their right to equal pay. The bill would protect workers from retaliation for discussing each other’s pay on the job.

So why not just peel that part out of the bill, make it a stand-alone measure that could pass in each chamber and continue to debate the other provisions? If anyone has any ideas, I’m all ears.

Of course, the consensus ends when it comes to the next logical question: How much pay data should businesses have to make public? Given the ongoing dispute over a failed attempt by the Equal Employment Opportunity Commission to expand required pay data reporting and recent claims by some companies facing Labor Department audits that their salary info qualifies as a trade secret, lawmakers aren’t likely to cross that bridge in the short term.

JD: By the time you’re reading this, I’ll be well on my way to Mexico for the American Bar Association’s Federal Labor Standards Legislation Committee Midwinter Meeting. I won’t be spending the whole time by the pool, though. I’ll be listening to panels on independent contractors, wage and hour litigation, and state pay laws, hoping to bring back nuggets for future stories. If you’re free, let’s connect and talk all things Fair Labor Standards Act. I’ll buy the margaritas.

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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