The OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:

 

Trump’s DOL Nominee Advanced to Full Senate

Wednesday, December 13, 2017
The Senate Labor Committee advanced several of President Donald Trump’s nominees for the Labor Department.

  • Kate O’Scannlain to be the Solicitor for the Department of Labor. In this role, she would oversee the department’s office of attorneys and report to U.S. Labor Secretary Alex Acosta.  O’Scannlain is a partner at the Washington, D.C. office of firm Kirkland & Ellis, where she specializes in employment law.
  • Preston Rutledge to be the Assistant Secretary of Labor for the Employee Benefits Security Administration. He would fill the spot held by Phyllis Borzi, the architect of the fiduciary rule, during the Obama administration. Rutledge currently serves as senior tax and benefits counsel for Senate Finance Committee Chairman Orrin Hatch, R-Utah.
  • William Beach to be the Commissioner of the Bureau of Labor Statistics. Beach is an expert in labor, econometric models, tax laws, and the national economy. Before joining the Mercatus Center, Beach served as the Chief Economist for the Senate Budget Committee, Republican Staff. Prior to that position, he was the Lazof Family Fellow in Economics at The Heritage Foundation and the Director of the Foundation’s Center for Data Analysis. In that role, Beach oversaw original statistical research on topics such as Social Security, education, and trade.
  • Scott Mungo to be the Assistant Secretary of Labor for the Occupational Safety and Health Administration. Mungo is the FedEx Vice President of Safety, Sustainability and Vehicle Maintenance. He is an attorney that started his career with FedEx in 1994.

The four nominees have advanced for full Senate floor consideration, which will likely come after the holiday recess. All the nominees are expected to get strong Republican support and eventually be confirmed.

If confirmed, many of the nominees will be tasked with helping the Trump administration work to cut regulations that critics say have stifled job growth, but supporters say provide necessary protections for workers.

 

Joint-Employer Standard Reinstated

Thursday, December 14, 2017
In a 3-2 decision, the National Labor Relations Board overruled the Board’s 2015 decision in Browning-Ferris Industries and returned to the pre–Browning Ferris standard that governed joint-employer liability.

In all future and pending cases, two or more entities will be deemed joint employers under the National Labor Relations Act (NLRA) if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine.

Accordingly, under the pre–Browning Ferris standard, the proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint-employer relationship.  The Board majority concluded that the reinstated standard adheres to the common law and is supported by the NLRA’s policy of promoting stability and predictability in bargaining relationships.

How We Got Here

 

Year-End Reminders

As we wrap up 2017, a few important reminders as we head into the new year:

 


THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at (866) 268-6206 (for DirectEmployers Association Members), or email Jennifer at jpolcer@directemployers.org with your ideas.

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