What's happening now in labor law

For your Labor Day Weekend enjoyment.

Misclassifying workers does not violate the NLRA. The National Labor Relations Board issued a decision yesterday, ruling 3-1 that worker misclassification does not violate the National Labor Relations Act. In Velox Express, the Board found that the employer had misclassified employees as “independent contractors,” but found that the misclassification did not violate labor law. Member Lauren McFerran, the only Democrat on the Board, dissented from this part of the ruling. (For a discussion of misclassification in the context of the gig economy, see this bulletin by Susan Bassford Wilson.) 

UAW corruption probes. The UAW continues to be the focus of federal investigations into possible corruption. We have previously reported on indictments stemming from bribes and kickbacks and misuse of union and corporate funds surrounding a joint UAW-Fiat Chrysler training center in Warren, Michigan, with multiple indictments, prison sentences, and intrigue. On Wednesday of this week, the FBI executed a search warrant at the home of UAW President Gary Jones in Canton Township, Michigan. On the same day, FBI agents visited the UAW’s Black Lake Conference Center in Northern Michigan, and also conducted raids in California, Missouri, and Wisconsin. The nature of the evidence sought is under court seal. According to a UAW statement, “As the leader of the UAW, President Jones is determined to uncover and address any and all wrongdoing, wherever it might lead.” More is sure to follow.

It’s official: Eugene Scalia is Trump’s nominee for Secretary of Labor. On July 18, President Trump announced his intent to nominate Eugene Scalia to the Secretary of Labor slot vacated by Alexander Acosta, who resigned because of his role as U.S. Attorney during attempts to prosecute Jeffrey Epstein. The President officially nominated Mr. Scalia on Wednesday of this week. Press reports indicate that Mr. Scalia, son of the late Supreme Court Justice Antonin Scalia, is beginning preparations for taking over as Secretary and preparing for a confirmation battle in the Senate. Democrats in the Senate are seeking to delay and block the nomination. But they may have little ammunition against the well-known, experienced, and respected Washington management-side labor lawyer. Press reports indicate that the Trump Administration is preparing for Senate confirmation without delay. According to a White House statement, “We expect the Senate to confirm this qualified nominee quickly.”

  

Joint employment” rulemaking at the NLRB. The period for public comment on the proposed regulatory standard for determining joint employer status under the National Labor Relations Act closed in February, after the Board received almost 29,000 comments. The proposed rule would make it more difficult to find that entities are “joint employers,” requiring that the entities “actually exercise substantial direct and immediate control” over terms and conditions of employment “in a manner that is not limited and routine.” Final regulations have not yet been issued. 

Representation case rulemaking at the NLRB. In addition to joint employer regulations, the Board announced in May that it would consider issuing regulations governing union elections. The following areas are being considered:

  • The Board’s current representation-case procedures.
  • The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
  • The standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the NLRA.
  • Standards for access to an employer’s private property.

On August 12, as we reported here, the NLRB issued proposed regulations on a first stage of new representation case regulations, over the dissenting vote of Member McFerran.

Image Credits: Details of "Detroit Industry" mural by Diego Rivera at Detroit Institute of Arts.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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