In the alert, Emanuel is noted for representing the “…notorious union-busting law firm Littler Mendelson,” and Kaplan’s, “…sole experience with labor law is on a policy level, drafting legislation to weaken worker protections…”
Read the entire letter from the AFL-CIO
Download PDF of letter HERE
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From overtime rules to worker protections, 5 ways Trump is shifting labor policy
A Senate committee is set to vote Wednesday on nominees to the National Labor Relations Board who would give the agency a Republican majority expected to reverse major pro-labor decisions issued during the presidency of Barack Obama.
Meanwhile, the Department of Labor is expected to scale back Obama-era plans to extend overtime eligibility to millions more workers. Several pro-worker regulations have been scrapped or delayed. And, in a sharp reversal from the prior administration, the government is backing the employer's position in a Supreme Court case on mandatory arbitration agreements that prohibit workers from filing class-action lawsuits.
To Peter Steinmeyer, an attorney in the Chicago office of Epstein Becker Green who represents management in employment cases, the developments reflect a predictable swing of the pendulum back to the pro-business right that occurs when Republicans take the White House from Democrats.
"The Trump administration isn't going to do anything out of line from what we have seen in prior Republican administrations," he said. One exception, he said, may be that Trump is at odds with many business leaders in his quest to reduce immigration.
But Celine McNicholas, labor counsel at the left-leaning Economic Policy Institute, said the changes, plus proposed deep cuts to the Labor Department's budget, are alarming. While budget tightening and pro-business policies are to be expected with a Republican White House, the size and targets of the cuts and the number of rules being rolled back are "not business as usual," she said.
"If you consider all that, I would argue that the first six months of the Trump administration have been devastating for workers in this country — unprecedented even," said McNicholas, who served as special counsel at the NLRB during the Obama administration.
Here are five labor policy developments that have taken place in recent months:
Overtime threshold redo
Trump's Labor Department filed a brief in federal appellate court late last month indicating it will not advocate for the overtime changes set by the Obama administration.
Those changes would have required nearly everyone paid less than $47,476 a year to be eligible for time-and-a-half pay when they worked more than 40 hours a week, a big jump from the $23,660 threshold in place since 2004 and a cornerstone of the Obama administration's efforts to lift wages.
A federal judge in Texas blocked the rule a week before it was scheduled to take effect Dec. 1, and Obama's Labor Department appealed.
The brief filed by the Trump Labor Department on June 30 states that the agency will seek public comment on a new salary threshold. That means a more modest increase could be in store.
"The betting is that it will go from $46,000 to somewhere in the mid-30s," said Brian Bulger, an attorney in the Chicago office of Cozen O'Connor who represents employers. "$33,000 is the big over-under."
National Labor Relations Board appointments
Trump's nominees to fill two vacancies on the five-member NLRB would give the agency its first Republican majority since President George W. Bush was in office, potentially tilting the board toward more employer-friendly stances.
The NLRB, an independent agency tasked with enforcing federal labor law related to collective bargaining and unfair labor practices, came under fire during the Obama years by Republicans who thought the board's Democratic majority was pushing a pro-union agenda, and those critics have been eager to undo some of its major decisions.
Those decisions include allowing employees to form "micro unions" with smaller bargaining units, and finding that graduate students working as teaching assistants at private universities are eligible to unionize. In perhaps its most controversial move, the board expanded the circumstances under which a company can be held liable for labor conditions under one of its subcontractors or franchisees, a decision with big implications for employers like McDonald's.
"A lot of these decisions are going to be reversed and it's probably just going to be a matter of time," Steinmeyer said, though it could take a while for relevant cases to come before the board.
Trump's nominees to the NLRB, Marvin Kaplan and William Emanuel, faced concerns from Senate Democrats at a hearing last week that they will be biased in favor of employers. Emanuel is a longtime labor lawyer representing management at Littler Mendelson, one of the nation's largest employment law firms. Kaplan recently worked as counsel for a House committee that proposed legislation to make it harder for workers to unionize.
The Republican-controlled Senate Committee on Health, Education, Labor and Pensions is scheduled to vote on the nominees Wednesday.
Labor Department budget cuts
Trump's proposed budget includes a 20 percent cut to Labor Department funding, from $12.1 billion to $9.7 billion. Most would come out of workforce training programs that the White House said should be funded more by states, localities and employers.
Some parts of the agency would get a funding bump, notably a 22 percent increase for the Office of Labor-Management Standards, which investigates misconduct in private-sector unions.
Although Trump's budget proposal does not increase funding for apprenticeships, he signed an executive order that calls for more than doubling the amount of federal grant money available to such programs, while cutting the government's role in monitoring them.
With the aid of Republican lawmakers, Trump has rolled back several rules and executive orders that Obama issued to protect workers.
Among them were the Fair Pay and Safe Workplaces rule, which barred companies from receiving federal contracts if they had a history of violating wage, labor or workplace safety laws. Another rescinded rule established parameters for when states can drug-test applicants for unemployment insurance benefits.
The Labor Department is in the process of rescinding the "persuader rule," which would have required law firms to publicly disclose any work they do for employers surrounding union organization efforts.
Meantime, the Occupational Safety and Health Administration has delayed three workplace safety rules issued during the last year of Obama's presidency, raising questions about whether they will be weakened or rescinded.
The rules would require certain employers to submit injury and illness data electronically to OSHA for publication on the agency's website; tighten exposure standards for silica, which is often breathed in by certain construction workers and linked to lung disease; and lower workplace exposure limits for beryllium, an industrial mineral linked to lung cancer.
About-face on mandatory arbitration
A significant workplace issue before the Supreme Court is whether employers may require workers to sign arbitration agreements that waive their rights to file class or collective actions should a dispute arise, an increasingly common practice. The NLRB has held that the agreements violate workers' rights, and Obama's solicitor general in November filed a petition supporting the NLRB in a case involving Murphy Oil, one of three cases the Supreme Court is reviewing on the issue.
In June Trump's acting solicitor general filed a brief with the court that took the opposite stance, asserting that mandatory arbitration agreements don't violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act.
Such an about-face is unusual, legal experts say, though how much it influences the court's analysis remains to be seen.
"While the government's opinion is normally very important, I'm sure the judges will be taking a look at the fact that this only changed because there was a change in administrations," Bulger said.