News: How labor policy is keeping attorneys employed

Monday, May 6, 2024

How labor policy is keeping attorneys employed

May 06, 2024

With help from Lawrence Ukenye

QUICK FIX

CO-EQUAL BRANCH: The Biden administration spent the spring putting the finishing touches on many of its key labor policy priorities. Now, it has to spend the remainder of the president’s term defending them in courthouses across the country.

Last week, the Federation of Americans for Consumer Choice, a trade group representing independent insurance agents and annuity sellers, sued the Labor Department seeking to block its regulation extending fiduciary obligations on certain forms of retirement investment advice.

The lawsuit argues that the rule is a rehash of an Obama-era policy vacated by the 5th Circuit and that DOL “rushed this latest rule package through at extraordinary speed and without any substantial consideration of the consequences or the effect it will have on the insurance industry in particular.”

Acting Labor Secretary Julie Su told House lawmakers Wednesday that the rule differs in key ways from the previous one and will hold up to judicial scrutiny.

DOL is also fending off several cases seeking to overturn its independent contractor regulation and bracing for challenges to its two-phase expansion of overtime pay guarantees for an estimated four million workers. That’s in addition to a GOP-led lawsuit against a DOL rule allowing ESG considerations in retirement investments that is currently before the 5th Circuit, among numerous others.

But DOL is far from the only agency swimming in motions and filing deadlines.

Republican attorneys general are challenging abortion-related language in the Equal Employment Opportunity Commission’s recent regulations for the Pregnant Workers Fairness Act, the Federal Trade Commission is juggling several cases contesting its ban on noncompete agreements, and the National Labor Relations Board is fighting for the survival of both its joint employer rule (see below) and its own continued existence.

Much of this action is playing out in district courts in Texas, where conservative judges have regularly stymied Biden policies across a number of fronts, including labor rules. At times, the administration has groused about “judge-shopping” and sought to move cases to other jurisdictions, though it has had limited success on that front.

As such there is a strong possibility that at least some of Biden’s labor moves will be held up, temporarily or otherwise, throughout the year — complicating the president’s ability to sell them on the campaign trail or have workers see the IRL benefit of wonky regulatory changes.

Still it’s impossible to predict how cases will shake out. For instance, a Trump-appointed Texas judge, Matthew Kacsmaryk, last year upheld DOL’s ESG rule.

GOOD MORNING. It’s Monday, May 6. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. Your host thinks more Pulitzer winners should have rap beefs. Send feedback, tips and exclusives to nniedzwiadek@politico.com and lukenye@politico.com. Follow us on X, formerly known as Twitter, at @NickNiedz and @Lawrence_Ukenye.

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On the Hill

THUMBS DOWN: President Joe Biden on Friday vetoed the Congressional Review Act resolution that would have nullified the National Labor Relations Board’s joint employer rule, Lawrence reports for Pro subscribers.

The regulation alters the standard used to evaluate whether multiple employers have control over a given worker — opening up businesses to legal exposure for labor law violations committed by their contractors or affiliates. The policy has faced fierce opposition from the fast food industry and other employer groups.

However the NLRB’s regulation has yet to take effect after a federal judge in Texas sided with a business-backed legal challenge back in March.

More Hill news: “When Failure Is the Only Senate Option,” from The New York Times.

Immigration

H5N1 PUTS FARMWORKERS AT RISK: Public health officials are running into obstacles as they try to help protect dairy workers from the bird flu virus circulating among U.S. dairy herds, our Marcia Brown reports for Pro subscribers.

Half of all dairy farmworkers are immigrants, and many are undocumented, which makes them wary of contact with the government and less likely to seek out care. Farms are often in remote, rural areas, far from health care services and other resources.

Labor experts said dairy farmworkers have few federal workplace safety regulations, leaving worker protections largely up to individual employers. And some of those employers are reluctant to allow government officials to conduct critical testing and surveillance on their farms for fear of being punished for hiring undocumented workers.

More immigration news: "Iowa Deportation Law Draws Threat to Sue From US as Overreach," from Bloomberg.

AROUND THE AGENCIES

DON’T DO THAT: Federal prosecutors charged a former government employee of falsely accusing more than a half-dozen colleagues of participating in the Jan. 6 riot, our Kyle Cheney reports.

The man allegedly used a “burner” email account to send anonymous tips to the FBI, leading investigators to go on a wild goose chase and investigate the other employees — several of whom had security clearances and/or worked in the intelligence community.

…OR THIS: “IG says [Illinois] employees made up businesses, lied about income to defraud federal COVID aid program,” from the Chicago Tribune’s (and former Shift-er) Olivia Olander.

ACTING UP: The White House has tapped Ann Orr to serve as the acting director for the Pension Benefit Guaranty Corporation after Gordon Hartogensis’ term expired at the end of April. Orr has worked as PBGC’s chief policy officer and previously served as its chief of staff from 2011-2019.

ON THE MOVE: Riter Hoopes has been promoted to be special adviser in the office of the secretary at the Department of Labor, our Daniel Lippman reports for West Wing Playbook. Hoopes most recently was a special assistant in that office.

In the Workplace

DEDICATION TO THE CAUSE: A Department of Defense employee, Stuart Harrow, is nearing the finish line of a decadelong quest to recoup $3,000 in docked pay due to a missed email and the 2013 government furloughs, The Wall Street Journal reports.

“Largely representing himself, Harrow has seen his appeal be rejected by the Defense Department, an administrative law judge and a federal board. A federal court of appeals refused to hear his case due to a missed deadline. The case etching Harrow’s name in the annals of jurisprudence considers only whether that deadline is so inflexible that it would prevent his claim from ever getting its day in court.”

The Supreme Court held oral arguments on Harrow’s case in March, and a decision could arrive in the coming weeks.

More workplace news: “DEI is getting a new name. Can it dump the political baggage?” from The Washington Post.

Unions

BOEING STANDOFF: Beleaguered airplane manufacturer Boeing locked out its unionized firefighters in Washington state after the sides failed to come to terms on a contract, ABC News reports.

The International Association of Firefighters represents 125 employees tasked with quickly responding to incidents at Boeing’s facility.

The union says workers there make considerably less than other local firefighters, while the company is unhappy that IAFF negotiators have rebuffed its offers. Boeing said it has instituted contingency procedures to maintain operations.

More union news: “United Auto Workers at Daimler Truck approve contact with more than 25% raises,” from the Detroit News.

IN THE STATES

RIDE APPS VS. MASS: Massachusetts’ highest court is set to hear arguments Monday over a pair of competing ballot measures related to the employment status of Uber and Lyft drivers, Reuters reports.

“An industry-backed proposal would treat app-based drivers for these companies as independent contractors entitled to some new benefits but would make clear they are not employees. A labor-backed proposal would let Uber and Lyft drivers unionize.”

Later this month the two companies are slated to go to trial in a case filed back in 2020 for allegedly misclassifying drivers as independent contractors.

More state news: “Arizona Is Booming, but Restless Voters Feel Downbeat About Economy,” from The Wall Street Journal.

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WHAT WE'RE READING

— “Geico Settles Case Claiming It Encouraged Employees to Call the Cops on Pro-Union Co-Workers,” from Bloomberg.

— "Overlooked No More: Min Matheson, Labor Leader Who Faced Down Mobsters," from The New York Times.

—“NCAA could pay over $2.7B to settle antitrust suits,” from ESPN.

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