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Punching In: Senate GOP Leadership Wants to Move EEOC Nominees

Sept. 8, 2020, 9:23 AM

Monday morning musings for workplace watchers

EEOC Nominees | Conservatives and Collective Bargaining | More Heat on Job Corps

Ben Penn: Senate Republican leadership has made it known that the chamber will prioritize a floor vote this month for three nominees to the Equal Employment Opportunity Commission, two sources who’ve recently communicated with Majority Leader Mitch McConnell’s office said.

Congress returns from summer recess Tuesday for a compressed window before most lawmakers hit the road in October to campaign, and nominations are an obvious check-down for the Senate as hopes for a pre-election stimulus deal fade. EEOC Republican nominees Andrea Lucas and Keith Sonderling and Democratic nominee Jocelyn Samuels have been in a holding pattern since clearing committee in early June. The business lobby is eager for Senate Republicans to solidify the GOP majority on the EEOC’s leadership panel.

Package vote? It wasn’t clear whether the trio could hit the floor as a package deal or whether the more complicated option of separate votes would be necessary—a route that could spell trouble for Samuels.

If the nominees aren’t confirmed in the next few weeks and President Donald Trump loses his reelection bid, the lame-duck session would be the last chance for Republicans to put a Trump stamp on the workplace civil rights agency. Republicans hold a 2-1 edge on the EEOC’s leadership panel, which has two vacancies. (Lucas would replace GOP commissioner Victoria Lipnic.)

The fading prospects of a bipartisan stimulus package lost more steam Sept. 4 with release of the latest monthly jobs report, which showed the economy added 1.37 million positions last month and the unemployment rate fell more than expected, to 8.4%.

Regulatory moves coming: The Labor Department is poised to advance workplace policy this month, with a pair of highly anticipated rules awaiting approval from the White House regulatory shop. The first is a potential blockbuster that would define the boundaries between employee and independent contractor under the Fair Labor Standards Act. And then there’s the Wage and Hour Division’s second stab at setting paid-leave requirements under the Families First Coronavirus Response Act.

Ian Kullgren: American Compass, a conservative think tank aimed at revamping “monotonal” arguments for limited government, is calling on conservatives to rethink their categorical opposition to collective bargaining—and the message is gathering unlikely support from management-side advocates.

In a letter released Labor Day eve—“Conservatives Should Ensure Workers a Seat at the Table”—the group argues it would behoove conservatives to support an overhaul of the nation’s collective bargaining laws and break from the traditional partisan thinking that expansion or contraction of an outdated New Deal-era labor framework are the only options.

Sounds liberal, right? Not so, the group insists: Revamping organized labor and adopting European-style reforms would encourage employers and workers to resolve disputes among themselves and fend off the “vast and unwieldy edifice of employment regulation.”

The group suggests the U.S. consider sectoral bargaining paired with right-to-work laws, a model that already exists in Europe. “Rather than cheer the demise of a once-valuable institution, conservatives should seek reform and reinvigoration of the laws that govern organizing and collective bargaining,” the letter says.

Relief for Uncle Sam: The letter also notes that unions in some countries “manage functions like unemployment insurance and job training that we take for granted as government responsibilities.”

“You’d find a pretty strong consensus among conservatives, including signers of this statement, that the system of organized labor that we have right now in this country is entirely dysfunctional,” Oren Cass, the group’s executive director, told Bloomberg Law.

Big-name backing: If you think this is beyond the pale for conservatives, take a look at the people who signed the letter. Supporters include Sen. Marco Rubio (R-Fla.); former Attorney General Jeff Sessions; J.D. Vance, celebrity author of “Hillbilly Elegy"; William Kilberg, labor solicitor during the Nixon administration (who later became a senior partner at Gibson, Dunn & Crutcher and a mentor to Labor Secretary Eugene Scalia); Jonathan Berry, former DOL acting policy chief and partner at Boyden Gray & Associates; and Roger King, the senior labor and employment council for the HR Policy Association.

“There ought to be opportunities for employers to work with employees on specific issues,” Kilberg said. “We shouldn’t take a rigid approach that assumes all organized labor is good or all organized labor is bad.”

The concept of sectoral bargaining isn’t so foreign, he said, noting that was the case in the U.S. auto industry before General Motors Co., Ford Motor Co., and Fiat Chrysler faced foreign competition.

“There is truth to the notion that companies operate better and employees do better financially when they have a seat at the table,” Kilberg said. “It’s just that simple.”

Ben Penn: Job Corps, the nation’s largest residential workforce development program for at-risk youth, is struggling to overcome challenges posed by the pandemic, as we reported last week.

Delayed tech: The DOL is accused of being slow to ensure that all students have equal opportunity to engage with Job Corps curriculum after the coronavirus forced the closure of most of the 121 privately run centers, which provide year-round living for participants. Shipments of Chromebook laptops and WiFi hotspots—essential ingredients for distance learning—were delayed, and DOL didn’t send out user-agreement forms so the operators could distribute the technology until Aug. 31.

Hill response? The program’s track record of drawing congressional scrutiny due to on-campus violence and mixed results on job placement begs the question: What, if anything, will Congress do in response? Job Corps has lost some 1,600 students during the pandemic. DOL says there are now 30,000 participants, compared with a May report that showed 63,000 students in 2007.

“Both Democrats and Republicans are looking for answers regarding the delays in distributing devices and providing timely guidance on distance learning and safety protocols to Job Corps centers,” House Education and Labor Committee Chairman Bobby Scott (D-Va.) said in a statement. “The Department has had months to give Centers and their students the tools they need to continue learning during this pandemic. Its failure to make this a priority is forcing young people to put their lives on hold.”

He added, “We must ensure this critical program gets the support it needs in the next stimulus package.”

Scott’s GOP counterpart on the committee, ranking member Virginia Foxx (R-N.C.), is among the Republicans who’ve joined Democrats in pressing DOL about Job Corps’ challenges.

“Republican Leader Foxx continues to be concerned about the efficacy and safety of the program and appreciates the administration making it a priority to fix it,” the panel’s GOP spokeswoman, Audra McGeorge, said.

One step Job Corps advocates have been urging Congress to take would be to pass legislation to waive a statutory requirement that’s prevented centers from accepting new students during the pandemic. The workforce development law that authorizes Job Corps mandates that all newly enrolled students get drug-tested on campus within 48 hours of arrival. In practice this means centers can’t enroll anyone until they get approval from DOL to re-open campuses.

We’re told there’s some bipartisan interest in getting this done, possibly as part of a stimulus package. But whether such big-ticket legislation can move in this political climate seems like a longshot.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here next Monday.

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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