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Punching In: What’s Ahead for Congress, Scalia, and Emanuel?

Sept. 9, 2019, 10:21 AM

Monday morning musings for workplace watchers

Return of Congress |Scalia Readies for Primetime | Emanuel Cloud Lifted?

Jaclyn Diaz: Congress returns today and I’d be lying if I said I wasn’t looking forward to getting my 10,000+ steps in daily and wearing down the soles of my shoes. I can’t say I’ll feel the same by the end of this term, though.

So what’s on deck in the first month back? House Majority Leader Steny Hoyer in a Dear Colleague letter last week laid out the plans for Democrats in the first three weeks back on the Hill.

After pushing through a series of bills to block oil and gas drilling, the House is expected to take on a continuing resolution to fund the government past Sept. 30. The Senate has its work cut out for its self in the early days post recess to nail down a funding plan.

I’ll be the first to say budget stories aren’t the sexiest things to read (or write) about, but I’d like to remind readers that major policy implications are often buried among the numbers. One that fellow reporter Paige Smith and I will be watching has to do with the budget for the Equal Employment Opportunity Commission (stay with me now).

Inside the House budget report for the EEOC passed just a few months ago was a request for an agency report examining its system for prioritizing workplace harassment and discrimination investigations. Basically, the issue is the EEOC’s backlog of still-to-be-investigated complaints and the required classification system used to prioritize them.

The agency’s “priority charge handling processing,” requires complaints to be classified as A, B, or C. Employees have complained about the pressure to categorize more cases as “C”—those that can be dismissed outright. Both workers and lawmakers worry that this system means investigations aren’t carried out thoroughly.

Paige and I are keeping an eye out to see if this same audit request is included in the final version of the budget. Even if it’s not, the issue won’t be dead because other lawmakers are digging into this issue.

Just last week, Rep. Bobby Scott (D-Va.), chairman for the Education and Labor Committee, and Rep. Suzanne Bonamici (D-Ore.), sent a far more detailed request for information to the EEOC going back years.

“The decrease in the agency’s staffing levels, coupled with decreases in the charge inventory, raises questions about whether the EEOC has developed policies that elevate expedience over due process,” the two said in their letter.

To round out the Congress preview, I want to highlight the Democrats’ plan to take on the Forced Arbitration Injustice Repeal Act (H.R. 1423) in the House during the week of the 16th. This proposal carries employment implications because it prohibits a predispute arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

So far, the proposal has the support of 215 Democrats and one Republican. Anything else I should be watching? Just shoot me a note.

Ben Penn: Eugene Scalia’s path to a likely Senate confirmation enters a new phase this week as the upper chamber returns from recess, paving the way for a formal nomination.

Here’s the status of the central players involved in the labor secretary battle heading into the week.

Lobbyists: Worker groups will be hitting the Capitol to ensure senators on both sides of the aisle are aware of what the groups are framing as Scalia’s anti-worker record. Business lobby groups, including Scalia’s past client the U.S. Chamber of Commerce, also will be hammering home their support to senators.

HELP Committee: Labor Committee Chairman Lamar Alexander (R-Tenn.) aims to schedule a confirmation hearing by the end of September, a committee source says. The panel’s Democratic minority staffers want to thoroughly vet Scalia’s lengthy record as a corporate attorney and former DOL solicitor.

Administration: Scalia’s preparations for the committee hearing are ramping up. I’m told his ongoing White House meetings with various DOL officials have begun to take the form of hearing simulations.

One final note on the DOL. Molly Conway’s last day at the department was Friday after having served for nearly all of the Trump administration in a variety of senior roles. She was one of former Labor Secretary Alexander Acosta’s most trusted aides, but had decided to step down before Acosta resigned in July.

Chris Opfer: There’s an important date approaching in the debate over when National Labor Relations Board members may need to sit out certain cases.

Sept. 26 marks Bill Emanuel’s (R) second year on the board. The anniversary isn’t likely to lift the cloud that has been following Emanuel around Half Street since the NLRB’s inspector general and agency ethics officer said Emanuel shouldn’t have participated in the landmark Hy-Brand case. But it does wrap up an initial two-year period in which Emanuel (like other members) was barred from weighing in on cases involving his former law firm and his personal clients, under a White House ethics pledge.

NLRB Chairman John Ring (R) has ordered an ethics review, intended in part to clarify the rules for when members must recuse themselves from certain cases. Meanwhile, former NLRB Chairman Phil Miscimarra (R) has some thoughts on the case that started the ongoing ethics debate.

Miscimarra and Morgan Lewis Associate Lauren Emery recently proposed certain basic standards for sorting out recusal questions. The elephant in the room (or on the page) is that Miscimarra was the NLRB’s chairman when the board issued the Hy-Brand decision. He was off to private practice at Morgan Lewis when the board scrapped that decision, citing Emanuel’s role representing a business involved with Browning-Ferris Industries. That’s the separate, still-pending case that the board overturned in Hy-Brand.

When Inspector General David Berry said Emanuel should have recused himself, Berry pointed in particular to the way Hy-Brand was decided. He cited an email from Miscimarra to Republican members that purportedly urged them to quickly adopt a draft opinion that looked a lot like Miscimarra’s dissenting opinion in Browning-Ferris. The board’s ethics officer agreed with at least Berry’s conclusion in a memo that few still have seen.

Among other suggestions, Miscimarra and Emery say board members themselves—not the board’s inspector general or designated agency ethics officer—should have the final say on whether the member sits out a case. They also said these decisions should be made before the board decides the merits of a case and that the recusal analysis, whether from the member or others, should be made public so that the parties in a case can use it on appeal if needed.

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

See you back here next Monday.

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To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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