Bloomberg BNA reporters Chris Opfer and Ben Penn asked this question in their weekly column of workplace musings: “Who needs the NLRB?” (a question I’ve asked myself more than once over the past eight years.) Said Chris Opfer: The ...


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“Who needs the NLRB?”

Bloomberg BNA reporters Chris Opfer and Ben Penn asked this question in their weekly column of workplace musings: “Who needs the NLRB?” (a question I’ve asked myself more than once over the past eight years.)

Said Chris Opfer:
The Trump team also has a couple of slots to fill on the National Labor Relations Board. In the meantime, Republicans in Congress are salivating at the chance to revamp the board, given GOP control of both the White House and the Capitol. “The NLRB is going to look a lot different” Rep. Phil Roe (R-Tenn.) told Bloomberg Law reporter Tyrone Richardson and me earlier this month.One of Roe’s colleagues on the Education and the Workforce Committee might take it a step further. Rep. Bradley Byrne (R-Ala.) isn’t so sure that the board should even continue to exist.

“I would say we ought to consider whether we need a board at all,” Byrne told me outside the House floor last week. “Let’s put everything into statutory law and continue to have the NLRB function as regional units for the enforcement of the law. If they need to go to an administrative law judge, they could still go there and they could go ahead and go through the court process from there. But I wonder why, with settled law, we need to have a National Labor Relations Board going forward at all.”
He concludes that “the NLRB ain’t going anywhere,” and I agree. But, as with any change in parties in the White House, over the next few years we should expect to see a systematic undoing of the more controversial policies of the Obama NLRB, including its stance on employee handbooks, social media policies, email access, and joint employment.

While President-elect Trump and I may not see eye-to-eye on many of his policies, we certainly agree that we need smaller government agencies that regulate less, and, when they do regulate, do so by interpreting existing laws and not making new ones. As active as the NLRB has been over the past eight years, a business friendly NLRB is as good a place to start as any.


A $15 minimum wage is not without consequences #fightfor15

Donald Trump’s presidency sparks an interesting dichotomy—a Republican that rode into office on a wave of populism, including fiscal populism. Officially, the President-elect favors a higher minimum wage: “On the minimum wage, Mr. Trump has voiced support for raising it to $10 at the federal level, but believes states should set the minimum wage as appropriate for their state.” 

The “Fight for 15” movement is taking notice:
Now, four years into their crusade, the movement’s leaders are signaling a determination to expand their reach beyond the urban working poor, who were among the chief beneficiaries of their earlier efforts. Among their new targets: working-class Americans frustrated by an economy that is no longer producing the middle-class jobs they or their parents once held. 
Many of these workers voted for Donald J. Trump. 
“A whole bunch of us out there are not doing well,” Scott Courtney, executive vice president of the Service Employees International Union and one of the chief architects of the Fight for $15 campaign, said in an interview last week.
And, employers are fighting back. For example, take a gander at this op-ed from Fortune, penned by the former CEO of McDonald’s USA:
In 2013, when the Fight for $15 was still in its growth stage, I and others warned that union demands for a much higher minimum wage would force businesses with small profit margins to replace full-service employees with costly investments in self-service alternatives. At the time, labor groups accused business owners of crying wolf. It turns out the wolf was real. Earlier this month, McDonald’s announced the nationwide roll-out of touchscreen self-service kiosks. … 
Of course, not all businesses have the capital necessary to shift from full-service to self-service— … a $15 minimum wage would force many small businesses to lay off staff, seek less-costly locations, or close altogether. catalogs the sad stories of dozens upon dozens of employers that have made the sad choice to raise prices, layoff staff, or even shut their doors because of higher state or local minimum wages.

And, in the meantime, “Fight for 15” protests continue nationwide, the latest just one week ago.

If you are faced with protests outside your business, there is not much you can do unless the protesters get out of hand or violent.

There are no easy answers to the problem of low-wage workers. And I believe those that bought into President-elect Trump’s populist message will be pissed when they realize that their working class interests do not fall in line with the core of this administration’s fiscal policies.

In the meantime, understand that a $15 minimum wage has real consequences, and consider whether it’s better to have a job that pays $8 or $10 an hour versus no job at all.


WIRTW #440 (the “muzak” edition)

Earlier this week I had a conference call with a client, an event which I repeat dozens of times per week. This particular client uses UberConnect as its conference call provider. I’ve never used UberConnect before, I know nothing about it, and I am certainly am not endorsing it. I am, however, endorsing its hold music. I was the first participant to dial in, and was prepared for a few moments of smooth jazz for my listening non-pleasure. Instead, I got this song, “I’m on Hold,” by Alex Cornell, one of the company’s founders, who wrote the song specifically for this purpose.

Kudos to any company that thinks outside the box and tries something different to make the mundane a little less so.

Here’s what I read the past two weeks:


Social Media, Technology, & Cybersecurity

HR & Employee Relations

Wage & Hour


OSHA & Safety

Will the 7th Circuit ban LGBT employment discrimination?

Those of you who have been reading this blog for any length of time should know that I strongly believe that it is a national embarrassment that LGBT employment discrimination remains legal. Sure, the EEOC believes that Title VII’s prohibition against sex discrimination covers LGBT discrimination. But, despite what it may think, the EEOC does not make law, it merely enforces laws made by others. And, yes, some federal courts are starting to come around to believing that Title VII covers LGBT discrimination. Yet, until either Congress amends Title VII to expressly cover LGBT discrimination, or all federal courts conclude that Title VII already covers it, employers are compliance limbo.

Yesterday, however, we received a bright signal that a key piece of judicial puzzle may soon fall into place. Earlier this year, in Hivley v. Ivy Tech Community College, a three-judge panel of the conservative 7th Circuit Court of Appeals held that Title VII does not prohibit sexual-orientation discrimination. Yesterday, a full panel of that same court heard re-hearing in that case, and, according to Employment Law 360, the tenor of the hearing suggests that the 7th Circuit is prepared to reverse its prior decision and hold that Title VII expressly bans LGBT employment discrimination.
Attorneys arguing Title VII of the act does not protect those who identify as gay or lesbian faced harsh questions from the bulk of the eleven Seventh Circuit judges on the panel, many of whom seemed to see a serious conflict between the U.S. Supreme Court’s ruling that discrimination based on failure to conform to gender norms is covered by Title VII and current interpretations of the act, which allow employers to discriminate against their employees based on their sexual orientation.
We will have to wait for the decision to determine if these tea leaves are pointing in the right direction. Whether they do, or not, however, I believe is ultimately irrelevant to how you should run your business. I’ll repeat what I said a earlier this year when the 7th Circuit announced its original decision:
On this issue, ignore Title VII, ignore the EEOC, and ignore the courts, and just do what is right. It is incomprehensible that in 2016 an employer can legally fire someone because of who he or she loves, dates, or marries. Do right by all of your employees. Enact policies prohibiting LGBT discrimination in your workplace. Send the message that you are an employer of inclusion, not exclusion.
Update: A recording of the Hivley oral argument is available here. Thank you Jesse Dill for the info.


Federal court denies injunction against new OSHA retaliation rules

Stan Musial, Wade Boggs, Rod Carew, Honus Wagner, Jimmie Foxx, Joe DiMaggio. Six of the greatest hitters in the history of baseball. And all ended the careers with batting averages under .333. If you’re a baseball player, one out of three places you among the all-time greats. If you’re the Department of Labor, however, it’s not so good.

The DOL has already taken two big losses this month (first its Persuader Rule, and then its Overtime Rule), so you’ll forgive it if it’s not overly jubilant about closing November with a much needed win. Yet, a win is a win, and at this point the DOL will take what it can get from federal judges in Texas.

Yesterday, one such judge denied issuing an injunction against OSHA’s new reporting rules [pdf] (for background on these rules, click here, here, and here). Absent an unlikely last minute change of heart from OSHA, these rules take effect tomorrow.

What does this mean for you? Starting tomorrow, you will have to comply with all 273 pages of the OSHA’s new injury reporting rule, including the requirements that establishments with 250 or more employees in industries covered by OSHA’s recordkeeping regulation must electronically submit to OSHA injury and illness information on OSHA Forms 300, 300A, and 301, and establishments with 20-249 employees in certain industries electronically submit information on OSHA Form 300A only. It also limits post-accident and -injury discipline and drug testing, and further limits employers’ accident-free incentive programs. These changes are significant, and will impact how you do business.

If you have questions or concerns about how these new rules impact your business, we recommend that you contact your friendly neighborhood OSHA-familiar labor and employment lawyer for help.


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