President Trump moves to fill two NLRB vacancies

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On June 28 President Trump formally nominated both Marvin Kaplan and William Emmanuel to fill the two Republican vacancies on the National Labor Relations Board. At the present time, the NLRB has a two-to-one pro-union, Democratic majority. These two nominees, once confirmed, will then shift the Board to a three-to-two Republican majority.

The Board nominations go to the Health, Education, Labor & Pensions (HELP) Committee, chaired by Senator Lamar Alexander (R-Tenn.). Once approved by this committee, the nominations will be submitted to the full U.S. Senate, where they will be confirmed. Let us hope the Senate acts quickly.

The White House released the following statements about the two nominees:

  • Marvin Kaplan of Kansas to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2020. Mr. Kaplan is currently the Chief Counsel of the Occupational Safety and Health Review Commission. Prior to joining the Commission, he spent almost seven years serving as Counsel, first to the U.S. House Oversight and Government Reform Committee and then to the U.S. House Education and the Workforce Committee. In those positions, Mr. Marvin was responsible for labor and employment oversight and policy, including the National Labor Relations Act, Labor-Management Reporting and Disclosure Act, and Labor Management Relations Act. In 2007, he began his public service as a Special Assistant in the U.S. Department of Labor's Office of Labor-Management and Standards. Mr. Marvin received a B.S. from Cornell University and a J.D. from Washington University in St. Louis.
  • William J. Emanuel of California to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2021. Mr. Emanuel represents employers in labor and employment law matters at Littler Mendelson in Los Angeles. His practice is devoted primarily to traditional labor law and he has litigated many cases before the NLRB. He is a fellow in the College of Labor and Employment Lawyers; a contributing editor of The Developing Labor Law; and a member of the Practice and Procedure Committee and Developing Labor Law Committee of the American Bar Association. He is also a member and past chairman of the Labor and Employment Law Section of the Los Angeles County Bar Association; the Labor Relations Advisory Committee; and the Employers Group Legal Committee. In addition, he is a member of the Labor and Employment Practice Group of the Federalist Society. He earned his JD from Georgetown University and AB from Marquette University.

With a Republican majority, I hope the Board will work to undo unfortunate precedents established during the Obama administration, including:

  • The 2015 Browning-Ferris joint employer decision.
  • The reversal of the Register-Guard ­e-mail decision.
  • The 2011 Specialty Healthcare decision, making it easier for unions to organize so-called "micro-units."
  • The NLRB's "Quickie Election" rule.
  • Social media cases that allow employees to defame/disparage their managers and management.
  • The reversal of the NLRB's FedEx decision. There will hopefully be a return to the independent contractor precedent of St. Joseph News-Press, following the common law – ignoring "disparity of bargaining power" and fully recognizing of the right of the contractor to engage in entrepreneurial activity.

Trump Department of Justice abandons salary level of 2016 overtime rule
On Nov. 22, 2016, the U.S. District Court in Texas enjoined nationwide the Obama Department of Labor's overtime rule, which would have increased the salary threshold for overtime exemption to $47,476. The District Court decision indicated that the DOL has no authority to set any salary for bona fide executive, administrative or professional employees.

President Obama's Secretary of Labor Thomas Perez immediately appealed that ruling to the U.S. Court of Appeals for the Fifth Circuit. Due to the change in administration, several requests for extensions of time were granted and the DOL's final briefing deadline was pushed back to June 30, 2017.

In its brief filed on June 30, the Department of Justice, representing on behalf of the DOL, abandoned its defense of the increased salary level. The brief states that the DOL intends to revisit the salary threshold by new rulemaking.

The DOJ is appealing a portion of the Nov. 22, 2016, District Court decision that says the DOL does not have authority to set any salary level thresholds for the exemptions. It is apparent from this briefing that Secretary of Labor Alexander Acosta and the DOL would like a ruling that the DOL has authority to set a salary level under the Fair Labor Standards Act. The DOJ is appealing only that part of the lower court's order.

During his confirmation hearing earlier in 2017, Secretary of Labor Acosta stated that while he favors raising the salary threshold for exempt status from $23,666 – the amount in place before the blocked 2016 overtime rule – he believes the new threshold should be "somewhere around $33,000."

The DOL says in its brief that it will not issue a new proposed rule until the litigation is resolved – or at least until its authority to set a salary level is resolved.

I had hoped the DOL would totally abandon its appeal and leave in place the decision of the U.S. District Court in Texas. That would have been the cleanest way to handle the situation. It would have made it more difficult for a future pro-labor administration to impose a high salary level threshold.

DOL withdraws independent contractor guidance memo
On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor's informal guidance on independent contractors, marking a shift in perspective under the Trump administration. This shift is good news for companies – such as newspaper publishers – that traditionally have many independent contractor relationships.

The guidance memo on independent contractors was issued in 2015 by President Obama's Secretary of Labor, Thomas Perez. The memo indicated that the DOL was going to aggressively attack independent contractor status. The memo also expressed the opinion that it would very narrowly define the term "independent contractor" to include more workers as statutory employees.

Now that the 2015 guidance has been withdrawn, the DOL's agenda on the independent contractor issue has changed for the better for employers. The agency will now shift its focus back to its pre-Obama standards for independent contractor status. We should see the DOL take a less aggressive enforcement stance when the independent contractor presents itself.

Court and NLRB sanction "F... You" post
Two days before a union election, employee Perez made a profanity-laden Facebook post disparaging his supervisor. The employee knew his Facebook friends, including 10 co-workers, would be able to see the post. The post later came to the attention of management, which ultimately fired Perez, following an investigation.

Perez then filed a charge with the National Labor Relations Board, claiming he had engaged in protected, concerted activities. The pro-union Obama NLRB, in a two-to-one decision, agreed. The Board ruled that the Facebook post was not so "opprobrious" as to lose the protection that the National Labor Relations Act affords union-related speech.

The employer appealed to the U.S. Court of Appeals for the Second Circuit, which was extremely deferential to the NLRB. While the Court upheld the NLRB, it did state: "However, we note that this case seems to us to sit at the outer bounds of protected, union-related comments, and any test for evaluating 'opprobrious conduct' must be sufficiently sensitive to employers' legitimate disciplinary interests."

I believe that Perez's Facebook post was clearly disloyal, disparaging and insubordinate behavior that should be punished. To see his full Facebook post, visit the "Zinsergram" page at www.zinserlaw.com.

U.S. Department of Labor reinstates opinion letters
On June 27, 2017, the U.S. Department of Labor announced that it would return to the practice of issuing opinion letters. This action allows the DOL's Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.

An opinion letter is an official written opinion by the Wage and Hour Division on how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion. The opinion letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010.

This likely signals the end of the Obama era of "administrator's interpretations." Consistent with that change is the withdrawal of the independent contractor guidance memo referenced above.

U.S. Secretary of Labor Alexander Acosta explained: "Reinstating Opinion Letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes... The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on what they do best: growing their businesses and creating jobs." (emphasis added)

Employers and business owners everywhere welcome this shift, as we hope for a more conciliatory and less punitive enforcement environment.

The DOL has set up a webpage at www.dol.gov/whd/opinion where the public can view existing guidance or request an opinion letter.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

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