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Punching In: White House Gears Up to Rethink Agency Enforcement

Feb. 10, 2020, 11:01 AM

Monday morning musings for workplace watchers

Probing Enforcement ‘Due Process'| Messin’ with Texas Worker Group | Equal Rights Fight

Chris Opfer: The White House is slated Monday to unveil its latest budget request, an annual spending and policy wish list that the lawmakers on Capitol Hill who hold Uncle Sam’s purse strings often disregard.

Congress has rejected the White House’s calls for steep cuts to labor and employment agencies during the Trump administration. Proposals to combine the Labor and Education departments and to merge the Equal Employment Opportunity Commission with the DOL’s federal contractor oversight office also were placed on lawmakers’ "pay no mind” list.

Still, the White House Office of Management Budget has made a number of moves outside of the annual funding request that are designed to shrink the federal government’s footprint. OMB recently signaled that it wants to streamline the way agencies enforce regulations, a move that could bring changes to the Labor Department, National Labor Relations Board, and the Equal Employment Opportunity Commission.

The office issued a request for information, asking interested parties to “identify additional reforms that will ensure adequate due process in regulatory enforcement and adjudication.” OMB wants to know whether agencies should be required to “show cause” to continue certain investigations, abide by specific rules of evidence during probes, and make changes to ensure that penalties for regulatory infractions “are generally fair and proportionate.”

OMB is likely to get an earful, especially from the business community. Any changes it may eventually impose could impact the way the DOL enforces wage-and-hour, workplace safety, and federal contractor nondiscrimination laws. The effort also could revamp the NLRB’s review of unfair labor practice complaints and the EEOC’s investigation of bias and harassment claims on the job.

Ben Penn: The DOL’s tiny union oversight shop may be punching above its weight. Included in our report on two new political staffers at the Office of Labor-Management Standards was the agency’s confirmation that it has an “open complaint” alleging the Workers Defense Project, an influential Texas worker center, is actually a union and thus subject to financial disclosure requirements.

The department typically doesn’t confirm whether such inquiries even exist. In this case, DOL wanted to assure us that new OLMS Policy Adviser Rusty Brown will recuse himself from participating in the matter because Brown is the person who filed the complaint six months ago. We still don’t know how far the agency’s investigation has advanced. But it’s certainly worth considering whether this probe adds more proof that the right-wing crusade against worker centers is gaining traction.

The inquiry comes as OLMS has already said it believes a Minneapolis worker center is a union, which has prompted widespread strategizing and pushback in labor movement circles.

If the department ultimately classifies the Workers Defense Project as a union, the agency would be targeting one of the country’s most prominent worker centers. The group’s success in improving workplace conditions for Texas construction workers is often cited as an innovative blueprint for labor’s rebound.

The Workers Defense Project also has solid political connections. Its co-founder, Cristina Tzintzun Ramirez, is vying to become the Democratic nominee to challenge Sen. John Cornyn (R-Texas) in November. Current executive director Jose Garza is on leave as he campaigns to serve as Travis Country district attorney (He was recently endorsed by Sen. Elizabeth Warren.). The organization’s leadership committee reads as a who’s who of local and national labor leaders.

The WDP isn’t commenting, so I’ll fill the void by pointing out the obvious: If the Trump administration believes this group is a union, it better be ready for a battle.

In other Labor Department news, Office of Federal Contract Compliance Programs chief Craig Leen was recently nominated to serve as inspector general of the Office of Personnel Management. A department spokesperson told Bloomberg Law’s Paige Smith that Leen will stay on at OFCCP while he awaits confirmation.

Jaclyn Diaz: President Donald Trump gave a shout-out to paid family leave during his State of the Union address last week. For the first time he publicly supported Congress passing a national leave policy in the form of the Advancing Support for Working Families Act (S. 2976), sponsored by Sens. Bill Cassidy (R-La.) and Kyrsten Sinema (D-Ariz.).

The measure would give a $5,000 advance to new parents in the private sector through the child tax credit. Naysayers of the bill are quick to note that no “leave” is technically even included in the bill.

In his speech, Trump also highlighted his signing of a paid family leave policy for federal employees, calling it a “model for the rest of the country.”

At least one major voice from the business community isn’t so keen on this categorization: Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce, said a policy like the one federal employees received is an “inappropriate comparison” for the private sector. Private businesses are in no position to absorb the same costs that the government leave policy imposes, he said.

There are good conversations happening on the Hill surrounding family leave, but the Chamber has yet to get behind any particular proposal, Freedman said.

The Family and Medical Leave Act is going under the microscope again this week. The House Education and Labor Committee is holding a hearing on Tuesday to examine ways for Congress to expand the law.

The House also could vote as soon as Tuesday on a joint resolution (H. J. Res. 79) that would remove the time limit for ratifying the Equal Rights Amendment to the U.S. Constitution. Forty-eight years after Congress first advanced the amendment, which would enshrine protections against sexual discrimination if ratified by three-quarters of the states, the House hopes this is the year it gets added to the Constitution.

In January, Virginia became the 38th state to ratify the amendment, meeting the three-quarters threshold more than 30 years after Congress’s initial deadline of 1982. Congress now faces a legal question: Is it too late to ratify the amendment, given the earlier deadline?

The attorneys general of Nevada, Illinois, and Virginia have asked a federal court to declare the ratification deadline unenforceable. The Justice Department and U.S. Archivist David Ferriero, who oversees constitutional amendments, both say it’s too late for Congress to change the deadline. If advocates are ultimately successful in the ratification fight, there’s a risk for court challenges questioning the enforceability of the ERA.

Democratic Women’s Caucus leader Rep. Jackie Speier (D-Calif.) said last week that adding the amendment to the Constitution will likely be a “huge battle,” but she reaffirmed the caucus’s belief that lawmakers can legally change the deadline. Speier said Ferriero is relying on an erroneous DOJ opinion from 1977 that’s been shot down by “every scholar of constitutional law in the country.”

“This is an Article 5 responsibility of the Congress of the United States,” she added. “We have the authority to pass constitutional amendments. We have the authority to extend them, to put deadlines, to take deadlines away.”

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. 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: John Lauinger at jlauinger@bloomberglaw.com

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