OFCCP Week in Review: December 18, 2017

• 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 Mugno 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.

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

• OFCCP Week in Review: September 8, 2015 covered the 8/27/15 NLRB decision Browning-Ferris, in which the Board held that multiple organizations can be considered joint employers if they exercise indirect control over workers.

• Sexual Harassment Training. Get it scheduled, get it done. As the headlines continue, the number of women coming forward do as well. A recent article highlighting the uptick in the EEOC website can be found here: ‘These sexual-abuse headlines inspired the most visits to the EEOC’s website in 2017’. If you are a covered employer in California, Maine or Connecticut, you’ve got specific rules outlining the harassment training that needs to take place.
• Federal Contractor minimum wage increases on January 1, 2018. See the OFCCP Week in Review: September 18, 2017 for details, including exclusions.