DOL Nominee Puzder To Withdraw?

Andrew Puzder, President-elect Trump’s choice to head the Department of Labor, may ask that his nomination be withdrawn, according to reports in New York magazine and Politico, quoting a Republican source close to the Trump transition team.  Puzder has disputed the story, tweeting on Monday “I am looking forward to my hearing,” which will take place on February 2.  Puzder’s nomination has been roundly criticized by Democrats and labor unions.

NLRB Joins Other Federal Agencies in Combatting Retaliation

Several federal agencies have joined forces to release a joint Fact Sheet highlighting the various anti-retaliation provisions of the workplace laws these agencies enforce. “Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs.

The Fact Sheet reminds employers that it is unlawful to retaliate against employees for exercising their workplace rights, regardless of the workers’ immigration status. Although workers are “always entitled to pay for work actually performed, regardless of immigration status,” remedies may be limited for undocumented workers. For example, under the NLRA “reinstatement and backpay are not available as legal remedies for employees who do not have work authorization.”

Announced on January 10, 2017, a mere 10 days before the inauguration of President-elect Donald J. Trump, the new Fact Sheet underscores what some may view as a tension between Trump’s immigration stance and the legal protections afforded to all workers. Given Trump’s focus on immigration reform, it should come as no surprise that the key federal agency players in the workplace law arena have united to remind employers that the anti-retaliation protections apply to all, regardless of immigration status. Employers should review their anti-retaliation policies and consider providing refresher training to their workforces.

Supreme Court to Review Validity of Class Action Waivers in Employment Arbitration Agreements

The U.S. Supreme Court has agreed to decide whether class action waivers in employment arbitration agreements violate the National Labor Relations Act. The Supreme Court’s action promises the much-anticipated resolution of the circuit court split on the issue.  The Court on January 13, 2017, granted certiorari in National Labor Relations Board v. Murphy Oil USA (No. 16-307), Epic Systems Corp. v. Lewis (No. 16-285), and Ernst & Young LLP v. Morris (No. 16-300), consolidating them for oral argument.  For more on the Supreme Court’s action and these cases, please click here.  Jackson Lewis is co-counsel in Murphy Oil.

DOL Nominee Puzder’s Hearing Rescheduled

The confirmation hearing for Andrew Puzder, President-elect Trump’s nominee for Secretary of Labor, has been postponed from January 12 to the week of January 16, according to a report in Politico. The hearing will take place before the Senate Health, Education, Labor and Pensions (HELP) Committee. The Committee is chaired by Senator Lamar Alexander (R-Tenn.).

Federal Court Paves Way for Local ‘Right to Work’ Laws

Local governments may enact “right to work” laws, the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, has held. United Auto Workers v. Hardin County, No. 16-5246 (Nov. 18, 2016). The Court ruled that such a law is not preempted by the National Labor Relations Act. This is the first federal appellate court to weigh in on the issue.

Right to work laws prohibit workers covered by a collective bargaining agreement from being forced, as a condition of employment, to join or not to join, or to pay dues to a labor union. Although the NLRA authorizes “union security” agreements, Section 14(b) provides an exception if such agreements are prohibited by state or territorial law. Twenty-six states have enacted these laws.

In January 2015, Hardin County in the Commonwealth of Kentucky passed Ordinance 300, which provided that no person covered by the NLRA should be required as a condition of employment to become or remain a member of a labor organization, to pay dues, fees, or assessments to a labor organization, or to pay the equivalent of dues, fees, or assessments to any charity or third party. (The ordinance also sought to prohibit union hiring hall and dues check off agreements.)

The UAW and several other unions challenged the ordinance, arguing that it was preempted by the NLRA’s limitation on the passage of right to work laws to state or territorial governments — not political subdivisions thereof. The U.S. District Court for the Western District of Kentucky at Louisville agreed and held that a County ordinance was not “State law” under Section 14(b) of the NLRA and that the ordinance therefore was preempted by the NLRA under the “Garmon Doctrine” (set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 [1959]). The Doctrine held that the NLRA preempts any state or local regulation of any activity the NLRA arguably protects or prohibits.

The Sixth Circuit reversed the District Court. It agreed with Hardin County that the phrase “State law” as used in Section 14(b) includes political subdivisions of the State. That is, to the extent Ordinance 300 prohibits employers from requiring membership in a labor organization as a condition of employment, it is not preempted and invalidated by the NLRA.The Court noted that political subdivisions are components of the state, within the state, that exercise governmental power of the state. Thus, the Court explained, the NLRA does not preempt local ordinances and, in fact, expressly permits state and local governments to pass right to work legislation. (The Court, however, invalidated the parts of the ordinance prohibiting hiring hall agreements and preventing dues check off because such provisions did not come within Section 14(b) and were subject to regulation under the Labor-Management Reporting and Disclosure Act.)

Other Circuit Courts have not weighed in on the subject, but likely will be called upon to do so as local governments look for ways to attract business if it is politically infeasible for the state in which they are located to enact a right to work law.

Puzder Hearing Set for January 12

According to a report in Politico, an aide to Sen. Lamar Alexander (R. Tenn.), Chairman of the Senate Health, Education, Labor and Pension (HELP) Committee, has revealed that the confirmation hearing for Andrew Puzder, President-Elect Donald Trump’s nominee for Secretary of the Department of Labor, will be held on January 12. Puzder is Chief Executive Officer of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s.

Puzder has criticized state and local minimum wage increases, the Affordable Care Act (ACA), and government overregulation, among other things.

If Puzder is confirmed as Secretary of Labor, employers should expect many changes on the labor and other fronts.  For a detailed analysis of those expected changes, see our article, Fast-Food Restaurant CEO Tapped to Head Labor Department: What to Expect.

New Political Landscape Calls for Substantial Budget Cuts, SEIU President Says

Service Employees International Union, the nation’s second-largest labor union behind the National Education Association, will cut its budget by 30%, according to a December 14 internal union memo first reported by Bloomberg on December 27. A 10% cut will take place immediately; the cuts will reach 30% by the end of 2017.

In the memo to all staff, SEIU President, Mary Kay Henry, wrote that the cuts are motivated by the union’s fear that “[b]ecause the far right will control all three branches of the federal government, we will face serious threats to the ability of working people to join together in unions….” The union endorsed Hillary Clinton and, according to the Washington Post, donated $1 million to Priorities USA Action, the main super PAC backing Clinton, and spent tens of millions on an independent field effort to turn out voters in battleground states.

Unions face challenges on several fronts under a Republican Congress and Presidency. A President Trump is expected to fill the two vacancies on the National Labor Relations Board with business-oriented members, creating a 3-2 business-centric majority that likely will reverse several labor-friendly decisions issued by the NLRB during the past eight years. In addition, President-elect Trump is expected to fill the one U.S. Supreme Court vacancy with a conservative justice, creating an expected 5-4 majority to invalidate state laws requiring government employees to pay union fees. (In Friedrichs v. California Teachers Association, a case that was before the Supreme Court earlier this year, the Court was expected to strike down such a law.  However, Justice Scalia’s death instead resulted in a four to four vote, leaving the lower court ruling refusing to invalidate the law intact. Several similar cases challenging such laws are pending in lower federal courts. The SEIU represents thousands of government employees who would be affected by a decision invalidating these laws.) The possibility also exists for the passage of a federal right-to-work law invalidating requirements in collective bargaining agreements that employees pay union dues or equivalent agency fees.

It is unlikely the budget cuts will cause the SEIU to abandon its “Fight for $15” campaign. According to Bloomberg, “[a]sked last year whether, if labor lost the Friedrichs case, she would redirect funds away from the Fight for $15, the union’s campaign to raise the minimum wage to $15 an hour, SEIU’s Henry answered, ‘absolutely not.’ She added, ‘You can’t go smaller in this moment. You have to go bigger.’”



USDOL Secretary Nominee Puzder Hearing Set For January

United States Senator Lamar Alexander (R-Tenn.) has announced that the Senate Health, Education, Labor & Pensions (HELP) committee, which he chairs, will hold a hearing on Secretary of Labor nominee Andrew Puzder’s nomination in January when the 115th Congress convenes. Senator Alexander has praised Mr. Puzder’s “understanding of how excessive regulation can destroy jobs and make it harder for family incomes to rise…”

Peter Kirsanow Possible Trump Choice for NLRB

Add the name Peter Kirsanow, a conservative Republican management-side labor lawyer practicing in Cleveland, Ohio, who was a member of the NLRB under President Bush through a recess appointment from January 4, 2006 to December 31, 2007, to the list of possible nominees by President-elect Trump to fill the two vacancies on the five-member National Labor Relations Board. Kirsanow, who has met with President-elect Trump, was considered for Secretary of Labor, but ultimately not offered the job – Andrew Puzder, CEO of CKE Restaurants, Inc. has been nominated. Kirsanow also is a member of the U.S. Commission on Civil Rights.

Kirsanow has publicly stated his opposition to the NLRB’s Browning-Ferris joint employer decision, which, to the detriment of employers (especially franchisors and franchisees), makes it easier for unions to prove that two organizations jointly employ the employees of one of them.  While on the Board, Kirsanow voted with the three-person majority in the Oakwood Healthcare decision, in which the NLRB clarified the criteria for finding an employee to be a supervisor, and thus, excluded from protection afforded by the National Labor Relations Act. The dissent in that case said of the decision, “[t]oday’s decision threatens to create a new class of workers under Federal labor law: workers who have nei­ther the genuine prerogatives of management, nor the statutory rights of ordinary employees.” Kirsanow went even further than the majority, finding that less evidence was required to be shown than his majority opinion colleagues believed was necessary to satisfy the independent judgment criterion.