Trump Labor Nominee, Andrew Puzder, Withdraws

Andrew Puzder, the fast food CEO that Donald J. Trump nominated to be Labor Secretary, abruptly withdrew his name from consideration today following revelations that he was physically abusive to his wife and that he employed an undocumented worker at his home.  Puzder had reportedly lost the support of several Republican senators, guaranteeing that his nomination would fail.   Continue reading

Take a Seat: Takeaways from Bank of America’s $15 Million Suitable Seating Settlement

As we previously blogged here, in April 2016, in Kilby v. CVS Pharmacy, Inc., the California Supreme Court ruled, without providing much guidance, that suitable seating is required “when the nature of the work reasonable permits the use of seats.” Last fall, Bank of America (BofA), in a similar representative action, agreed to settle a suitable seating lawsuit for $15 million, filed on behalf of all of its California non-exempt tellers.  The settlement provides some interesting insights about settlements of class and representative actions, and provides some guidance on the suitable seating requirement under California law.

The Players: The settlement involved two cases that were filed between 2011 and 2013.  In April 2011, two plaintiffs, Rhonique Green and Olivia Giddings, filed a putative class action complaint in Los Angeles County Superior Court (the Green action), seeking damages and civil penalties under the California Private Attorneys’ General Act (“PAGA”) on behalf of themselves and all current and former BofA California tellers.  The plaintiffs alleged BofA required them to stand while working, in violation of California’s Wage Order, even though there was “ample space behind each counter to allow for the use of a stool or seat by Bank of America’s tellers during the performance of their work duties.”  BofA removed the Green case to federal court.  In October 2013, Nicole Garrett filed another complaint (the Garrett action) against BofA in Alameda County Superior Court, seeking civil penalties through a PAGA “representative action.”  The Green action was stayed pending resolution of the Garrett action.

Who Got Paid: Upon settlement of the Garrett Action, after $5 million (1/3 of the settlement) plus litigation costs went to plaintiffs’ counsel, 75% of the settlement was distributed to the State of California (the Labor Workforce Development Agency, or “LWDA”), leaving 25% to the allegedly aggrieved employees.  The three named plaintiffs each received a $25,000 enhancement before the remaining 25% was divided among the representative group of employees.

Interesting Features of the Settlement: In addition to the $15 million settlement, BofA agreed to non-monetary terms that should help prevent future suitable seating litigation against it.  Specifically, BofA agreed to provide suitable seating for its tellers at all California BofA branches.  BofA agreed to inform tellers (via managers and meetings with tellers) that they have the right to use seats while working when the nature of their work reasonably permits sitting.  Under the settlement agreement, the term “reasonably permits sitting” requires BofA to provide seats to tellers when they are working on the teller line and/or at a teller window, including when they are assisting customers. However, the “suitable seating” provision does not apply when it is not possible for the teller to remain seated while performing his or her job, such as when the teller is printing.  Also under the agreement, BofA now instructs tellers to advise management if a seat is not available so management can promptly provide a suitable seat.  Last, BofA agreed to post documentation regarding its suitable seating policy for employees to access along with other policies and procedures.

The Bottom Line: The terms of this settlement don’t necessarily have a ripple effect beyond BofA and the putative class, and the agreement does not do much to illuminate the “suitable seating” requirement.   The law is still fairly undefined as to when the workplace “reasonably permits the use of seats.”  Because of that uncertainty, and the substantial potential damages and penalties that may be sought in a PAGA or class-wide suitable seating action, employers should evaluate whether their workplace reasonably permits the use of seats, using the Court’s reasoning in Kilby v. CVS Pharmacy, Inc. as a guide. If such provision of seating is warranted, then the next step is to prepare a written suitable seating policy; to disseminate and inform employees of this policy and the availability of suitable seating, and to provide suitable seating pursuant to that policy. Further, because the law is murky as to when work “reasonably permits” seating, employers should conduct such an analysis with the aid of counsel.

 

 

Another Great Unknown: the Future of LGBT Protections Under President Trump

During the first few weeks (or even months) in office, President Trump will have a lot of key issues (e.g., healthcare and immigration) on his agenda.  What we do not know is whether President Trump and his administration will focus on transgender or sexual orientation rights.  In fact, we have no clear indication on what President Trump’s position is on transgender rights (though he went on record during a town-hall-style campaign event to state that transgender people should be allowed to use the bathroom they feel is appropriate).  What we do know is that President Trump will have the opportunity to appoint the new chair at the Equal Employment Opportunity Commission in July 2017 when the term of its current chair, Jenny Chang, expires, if not sooner.   The new chair, with likely budget cuts from Congress, could lead the EEOC to an about-face from the current EEOC direction of applying Title VII to workplace discrimination claims based on gender identity and sexual orientation.

In the last several years, following the momentum built by federal courts upholding transgender rights under Title VII (e,g., Smith v. City of Salem (6th Cir. 2004), Schroer v. Billington (D.C. Cir. 2008), and Glenn v. Brumby (11th Cir. 2011)), the EEOC has interpreted the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 as providing protection to lesbian, gay, bisexual, and transgender people, even though there is no explicit language extending the protections to gay and transgender rights.  (See Macy v. Dept. of Justice (EEOC 2012), Lusardi v. Dep’t of Army (EEOC 2015)).  Applying that interpretation, the EEOC has filed lawsuits against a number of employers for sexual orientation or gender identity discrimination.  In October 2016, the EEOC published its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021. (https://www.eeoc.gov/eeoc/plan/sep-2017.cfm). In the SEP, the EEOC outlined its enforcement and guidance strategies for various employment issues and outlined that it continues to prioritize, among other issues, “protecting lesbians, gay men, bisexuals and transgender (LGBT).”  The EEOC under the Trump Administration is likely to alter its course in vigorously enforcing such issues, choosing instead a narrower view of “sex” discrimination under Title VII since the United States Supreme Court has yet to weigh in on whether such individuals are protected under Title VII.

Interestingly, however, any changes that may be made in the direction of the EEOC may not slow the push to interpret “sex” discrimination to include sexual orientation and gender identity. If the Seventh Circuit in Hively v. Ivy Tech Community College and Second Circuit in Christiansen v. DDB Worldwide join the Sixth, District of Columbia and Eleventh Circuits in determining that Title VII protects employees from discrimination based on sexual orientation, this would signal that the U.S. Circuit Courts are the new vanguard of an expansive interpretation of Title VII’s protections, potentially supplanting the active role that the EEOC has played throughout the Obama Administration. Of course, the issue of the scope of Title VII may thereafter wind its way to the U.S. Supreme Court, and how the high court would rule, particularly when the current judicial vacancy is filled, is very much an open question.

The Trump Administration’s strategies and appointments will undoubtedly impact transgender and sexual orientation discrimination protections under Title VII, but the administration’s ultimate strategic direction as to Title VII, as well as a broad range of policy positions, is largely unknown at present. For now, we watch and wait.

 

Bill Ross Gives Update From The State Bar Business Law Section’s Corporations Committee – SEC Files Charges For Hacking Into Law Firm Networks

FOR THE FIRST TIME SEC CHARGES PERSONS FOR HACKING INTO LAW FIRM COMPUTER NETWORKS

On December 27, 2016, the Securities and Exchange Commission announced charges against three Chinese nationals for trading on the basis of material nonpublic information. According to the SEC’s complaint filed in the United States District Court for the Southern District of New York, the individuals hacked into the private networks of two prominent unidentified New York-based law firms and stole confidential information regarding merger and acquisition discussions involving several public companies. The defendants then traded on the information, amassing approximately $3 million in profits. In a related action, on December 27, 2016 the U.S. Attorney for the Southern District of New York announced criminal charges against the individuals and the arrest of a fourth person, and indicated that the individuals had targeted at least seven law firms.

The SEC action is the first time it has charged anyone with hacking into the computer network of a law firm. The defendants allegedly installed malware on the computer networks that enabled them to circumvent access and related security controls, then compromised the user accounts of information technology employees at the law firms and thus gained access to nonpublic emails at the firms, including the email accounts of the leaders of the M & A practice group. The defendants allegedly covered up their breaches of the network by deceptive acts, such as disguising their activity as routine network traffic, thereby preventing detection by the security systems of the law firms.

Antonia Chion, Associate Director of the SEC’s Division of Enforcement, stated: “This action … serves as a stark reminder to companies and firms that your networks can be vulnerable targets.”  Manhattan U.S. Attorney Preet Bharara said: “This case of cyber meets securities fraud should serve as a wake-up call for law firms around the world: you are and will be targets of cyber hacking, because you have information valuable to would-be criminals.”

This e-Bulletin was prepared by William Ross, of counsel to Hirschfeld Kraemer LLP, where he represents clients on corporate matters. 

Felicia Reid Explores 2016 California Wage-and-Hour Law Affecting Agricultural Workers in Daily Journal

HK’s Felicia Reid authored the Los Angeles/San Francisco Daily Journal “New Laws” supplement article titled, “AB 1066: Overtime for farmworkers.” The piece unpacks the Phase-In Overtime for Agricultural Workers Act of 2016, a wage-and-hour law affecting California agricultural workers.

AB 1066: Overtime for farmworkers 

Assembly Bill 1066, the Phase-In Overtime for Agricultural Workers Act of 2016, as its title suggests, phases in full coverage of California’s stringent overtime requirements for the state’s agricultural workers. These stringent overtime requirements are triggered when employees work beyond an eight-hour day, a 40-hour workweek, and/or a six-day workweek. Currently, overtime requirements for agricultural are far weaker. The four-year phase-in period does not begin until 2019, with an additional three-year delay for small employers.

California is one of the few states to require overtime of any kind for agricultural workers. They have historically been exempt from overtime under federal law. California currently exempts agricultural workers from weekly overtime. Under Wage Order 14, however, the state has long required payment of time-and-a-half overtime after 10 hours of work in any workday and after eight hours on the seventh consecutive day of work in a workweek, as well as double-time overtime after eight hours on that seventh day. Under AB 1066, at the point of full coverage in 2022, agricultural workers will earn overtime identically to their nonexempt counterparts in other industries: time-and-a-half after working eight hours in a workday and 40 hours in a workweek, and for the first eight hours of work on the seventh consecutive day in a workweek, as well as double-time after working 12 hours in a workday and after eight hours on the seventh consecutive day in a workweek.

The phase-in schedule begins in Jan. 1, 2019, with the 10-hour daily overtime trigger lowered by half an hour per year, from 9.5 hours in 2019 to 8 hours in 2011. Weekly overtime is also phased in, with an initial weekly overtime trigger of 55 hours in January 2019, which is lowered by five hours per year to 40 hours in 2022. Only in January 2022 does the 12-hour trigger for daily double-time go into effect. For employers of 25 or fewer employees, the phase-in schedule is delayed by three years until January 2022, with full implementation delayed to 2025.

The legislation also removes the agricultural worker exemption from statutory meal period requirements found in Labor Code Section 541. However, Wage Order 14 has historically provided substantially the same meal and rest period rights to agricultural workers as are provided to other employees, including a half-hour duty free meal period after five hours of work and a ten-minute paid rest break for each four-hour work period. AB 1066 makes clear that the stringent statutory requirements as to timing of these breaks now apply identically in the fields of California’s farms and vineyards as in other work environments in the state.

Originally published in the Los Angeles/San Francisco Daily Journal, January, 18, 2017. Copyright 2017 Daily Journal Corporation, reprinted with permission.

Arbitration Agreements Front and Center: United States Supreme Court Set to Resolve Ongoing Row over Legality of Class Action Waivers

As readers of this blog will note, we have previously noted a split among the U.S. Circuit Courts on the issue of whether class action waivers in arbitration agreements are legal or not: the Second, Fifth (see here) and Eighth Circuits have held that such waivers are legal (relying upon the Supreme Court’s holding in AT&T Mobility LLC v. Concepcion, among others), while others (including, most recently, the Ninth Circuit in Morris v. Ernst & Young, LLP), accepting the arguments of, notably, the National Labor Relations Board, have held that such waivers are not legal.  (In an opinion that is logically consistent with those of the other circuits that have held such waivers illegal, the Ninth Circuit in Morris held that Section 7 of the National Labor Relations Act (“NLRA”) and its promise of protected “collective action” renders class action waivers in arbitration unlawful—despite the lack of required “clear congressional intent” for the NLRA to trump the Federal Arbitration Act, as the Supreme Court discussed in AT&T Mobility and also in American Express Company v.Italian Colors Restaurant.)

Today, the Supreme Court granted a petition to consider, in a consolidated appeal, which Circuit’s position will prevail.

For employers, this decision to grant review, though not surprising, is absolutely critical.  If the Supreme Court agrees with the NLRB and invalidates such waivers, this would open up a window for class action litigation or class arbitration that had seemingly closed with AT&T Mobility.  This would clearly be a discouraging turn of events for employers.  Yet the current state of affairs is nearly as bad because of the degree of uncertainty regarding class action waivers: are they enforceable or unenforceable?  To say this lack of certainty makes managing employees and employment litigation difficult would be an understatement.

What comes next?  As Yogi Berra once said, “It’s tough to make predictions, especially about the future.”  This past election cycle has proven Mr. Berra correct. What we can say is that the current vacancy on the Supreme Court (and when it is filled, and who fills it) looms large for this decision.  Stay tuned.

 

Employers Beware: On-Duty and On-Call Rest Breaks Are Prohibited

On December 22, 2016, the California Supreme Court issued a decision, Augustus v. ABM Security Services, Inc., concluding that state law prohibits on-duty and on-call rest periods. This decision reverses a January 2015 decision in which the Court of Appeal ruled that such rest periods were lawful, even though employees might have to respond to an emergency call during a rest period.

The Supreme Court held that “during rest periods, employers must relieve employees of all duties and relinquish control over how the employees spend their time,” relying upon their 2012 decision in Brinker Restaurant Corporation v. Superior Court. In other words, employees cannot be restricted in how they use their time, where they spend their time, and cannot be subjected to any other employer restrictions during their 10 minute legally mandated rest breaks. The Supreme Court made clear that its holding applied both to on-duty rest periods (where an employee is actually working) as well as on-call rest periods (where an employee is not working, but is prepared to and will return to work during the rest period upon request from the employer).

Acknowledging there are times an employer may “find it especially burdensome to relieve their employees of all duties during rest periods- including the duty to remain on call,” the Court provided that Employers “may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in [the Wage Order].”

This decision creates genuine problems for employers who have a legitimate business need for on-duty or on-call employees. For example, there are certain employees who may lawfully be able to agree to have on-duty meals due to the nature of the job (see e.g. Wage Order 4-2001 11(A)). Because there is no similar provision for rest breaks, however, based on this decision, employers who need employees to remain on duty during rest breaks should review the impact of this case and the potential need to pay a premium if a lawful off-duty rest break is not authorized or permitted.

Recommendations for Employers:

  • Advise managers against calling employees while they are on break.
  • Do not require that employees carry a cell phone other mandated communication devices (such as a “walkie talkie”) during breaks.
  • Do not restrict employees from leaving the premises during a break.
  • Consider implementing a policy advising employees to inform management if a rest break is interrupted, or if they feel they are unable to take a rest break so that management can provide either an uninterrupted rest break or a rest break premium.

 

City of Los Angeles “Bans The Box” Regarding Applicants’ Criminal History for Private Employers

As we first discussed here, “ban the box” state laws and local ordinances are picking up traction nationwide.  Both California and Los Angeles (in 2013 and 2014 respectively) passed legislation regulating public entities’ ability to inquire about a job applicant’s prior criminal history.  Beginning January 1, 2017, Los Angeles will join the growing number of jurisdictions also regulating a private employer’s ability to make such an inquiry.

Who Is Covered? 

The ordinance covers private employers that are located or do business in the City of Los Angeles and who employ 10 or more employees.  For the purposes of this ordinance, an employee is any person who performs at least two hours of work on average each week in the City of Los Angeles and who qualifies as an employee entitled to minimum wage under California’s minimum wage law.

Notably, the ordinance defines “employment” to include, but not to be limited to, temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, as well participation in a vocational or educational training program with or without pay.

The ordinance specifically exempts (1) employers who are required by law to obtain conviction information; (2) positions where the applicant would be required to use a firearm in the course of employment; (3) positions where a prior conviction would legally bar employment; and (4) employers who are prohibited by law from hiring an applicant convicted of a crime.

Requirements

Prohibited inquiries: Employers subject to the ordinance may notinclude on any job application any questions seeking the disclosure of an applicant’s criminal history.  An employer may also not at any time or by any means inquire or require the disclosure of an applicant’s criminal history unless and until a conditional offer of employment is made.

What if I make a conditional job offer and discover an applicant’s criminal history? – Acting upon the information: If an applicant’s criminal history is revealed after the employer makes a conditional offer of an employment, the employer may not take any adverse action against the applicant unless the employer first performs a written assessment linking the applicant’s criminal history with risks inherent in the duties of the job sought.

    • At a minimum, the written assessment must consider 8 factors identified by the EEOC (https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm) and any other factors as may be required by any rules or guidelines promulgated by the City’s Department of Public Works, Bureau of Contract Administration (Department), which will have responsibility for administering the Ordinance.
    • Additionally, prior to taking any adverse action the employer must provide the applicant with a “Fair Chance Process.”  This process allows the applicant at least five business days to review a copy of the written assessment and provide information regarding the accuracy of the criminal record or any other information including but not limited to evidence of rehabilitation or other mitigating factors.  The employer must consider this new information and provide a written reassessment.  If after performing the reassessment, the employer still decides to take adverse action against the candidate, the employer must notify the candidate and provide the applicant with a copy of the reassessment.

No Retaliation: An employer may not take any adverse employment action against an employee for asserting his or her rights under this ordinance.  Activity protected from retaliation is broad, including but not limited to complaining to the City regarding an employer’s compliance or anticipated compliance, opposing a practice proscribed by the ordinance, participating in proceedings related to the ordinance, seeking to enforce his or her rights or otherwise seeking to assert any rights under the ordinance.

Notice: An employer must (1) affirmatively state on solicitations or advertisements seeking applicants for employment that the employer will consider applicants with criminal histories in a manner consistent with this law; (2) post a notice in a conspicuous place at each worksite informing applicants of the provisions of this ordinance.

Record Keeping: An employer must retain all records related to an applicant’s employment applications for a period of three years.

Enforcement: an applicant may bring a civil action an employer and is may seek the penalties set forth in the ordinance as well as any other legal or equitable relief appropriate to remedy the violation.  Before filing a private lawsuit against an employer the applicant must report the alleged violation to the City’s Department of Public Works, Bureau of Contract Administration, which must be filed within one year of the alleged violation, and a determination before a hearing officer has been reached, including conclusion of any hearing.  Any civil action must be filed within one year of the completion of the Department’s enforcement process or the issuance of any decision by a hearing officer, whichever is later.

Penalties for violations of the notice and recordkeeping requirements are set at $500.  Violations of other provisions are set at $500, $1,000, and $2,000 for the first, second, and third-or-subsequent violation respectively.  The Department will not impose any penalties or fines until July 1, 2017.  Before that date, the Department will only issue written warnings.

Takeaways

Employers should review existing applications and policies to ensure that they are in compliance with the ordinance.  Additionally, it will be critical to provide appropriate training for managers and supervisors responsible for hiring decisions.  The training should cover both the scope of permissible inquiries as well as implementation of the “Fair Chance Process.”  Employers may also wish to take the opportunity to review their pre-employment screening policies with respect to running background checks and credit checks as regulated by both federal and state law.

 

Recreational Marijuana Is Now Legal in California: How Does This Affect Employer Workplace Drug Policies?

In what might once have been viewed as a remarkable development, but now generates little surprise, recreational marijuana use is now legal in California. On November 9, 2016, Californians approved Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act (the Act), legalizing the recreational use of marijuana. Contrary to California’s typical position as a legislative frontrunner, the Golden State is bit more of a follower here, joining several other states, including Colorado, Oregon and Washington, where the personal possession and use of marijuana has already been decriminalized. Maine, Massachusetts and Nevada also recently passed recreational use laws, which have not yet taken effect.

Impact of the Control, Regulate and Tax Adult Use of Marijuana Act

The Act amends, repeals, and adds sections to California’s Business and Professions Code, the Food and Agricultural Code, the Health and Safety Code, the Labor Code, the Revenue and Taxation Code, and the Water Code. The Act does not alter California’s existing medical marijuana law, the Compassionate Use Act of 1996.

The Act legalizes recreational marijuana use for adults aged 21 or older under California state law and establishes certain taxes on the cultivation and sale of nonmedical marijuana, including marijuana products. While the recreational use provisions are effective immediately, other tax and licensing provisions of the law will not take effect until January 2018.

Under the Act, it is legal to smoke marijuana in a private home or at a business licensed for on-site marijuana consumption. Smoking marijuana remains illegal while driving a vehicle, in all public places, and anywhere smoking tobacco is. The law makes it legal to possess up to roughly one ounce of marijuana; however, possession on the grounds of a school, daycare center, or youth center while children are present remains illegal. Individuals are permitted to grow up to six plants within a private home, as long as the area is locked and the plants are not visible from a public place.

Marijuana businesses will need to acquire a state license to sell marijuana for recreational use and local governments can also require businesses to obtain a local license and can restrict where such businesses can be located. Local governments are also allowed to completely ban the sale of marijuana from their jurisdictions.

What the Adult Use of Marijuana Act Means for California Employers

Marijuana (whether for medical or recreational use) remains illegal under federal law. This is the foundation for understanding how California’s recreational and medical marijuana laws affect—or don’t affect—employer policies. In short, employers can continue to rely on federal law and enforce their workplace substance abuse policies. Also, the Act itself explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana, including any drug-testing policies.

Nothing in the Act is intended to affect or interfere with the rights and obligations of employers to maintain a drug-free workplace or to require an employer to accommodate the use or possession of marijuana in the workplace. Employers may continue to have policies prohibiting the use of marijuana by employees and prospective employees, and the Act does not prevent employers from complying with state or federal law.

In California, employers can require job applicants to pass a drug test as a condition of employment, provided they test all applicants for particular job positions and do not single out certain applicants based on protected characteristics. Drug tests performed after an individual has been hired are permissible if there is reasonable suspicion that the worker is under the influence, in certain safety-sensitive jobs, or pursuant to a narrowly-tailored, post-accident testing policy. In the case of a positive drug test, California employers have the discretion to not hire an applicant, or to discipline an employee, up to and including termination of employment. This is the case even if the individual has been prescribed marijuana due to a medical condition. In the 2008 case, Ross v. RagingWire Telecommuns., Inc., the California Supreme Court upheld the right of an employer to fire an employee who failed a pre-employment drug test as a result of marijuana use recommended by his physician. The court found that employers are not required to accommodate an employee’s medicinal marijuana even though such use was legal in California under the Compassionate Use Act of 1996. (It seems logical that the Ross v. Ragingwire decision might be tested on appeal down the road, but for the present, it is good law.) Likewise, the legalization of recreational marijuana use under the Control, Regulate and Tax Adult Use of Marijuana Act does not require employers to accommodate such use by their employees.

Further, any employers who contract with or receive grants from the State of California are required, under California’s Drug-free Workplace Act of 1990 to certify that they provide a drug-free workplace.

Similarly, any employers who enter into a federal contract for the procurement of property or services valued at $100,000 or more, or receive any federal grant, must follow the regulations of the Drug-Free Workplace Act of 1988.

What Actions, if Any, Should Employers Take?

While the Act does not prevent employers from continuing to rely on federal law and enforce their workplace substance abuse policies, in light of California’s recent legalization of recreational marijuana use, employers may want to consider updating their policies to clarify any expectations with respect to employee marijuana use—but again, this new law should not meaningfully impact such expectations or policy.

What Action Might the Federal Government Take, Given that Marijuana Remains Illegal Under Federal Law?

This is very much an open question. Despite frequent calls for changes to the federal Controlled Substances Act of 1970 (the CSA), marijuana remains a “Schedule 1” banned substance. The issue, then, is not so much any contemplated change in the CSA, but enforcement of it (or not). Although the Department of Justice (DOJ) under President Obama has not prosecuted most individuals and businesses following state and local marijuana laws, it remains to be seen whether the DOJ’s approach will change under the Trump Administration. Even if the Trump Administration’s DOJ does change its approach, however, and increases enforcement efforts, this likely will not impact employer drug-related policies for the reasons discussed above.

Trump Nominates Andrew Pudzer To Head Department of Labor

President-Elect Donald J. Trump intends to nominate Andrew F. Pudzer to head the U.S. Department of Labor, according to numerous sources familiar with his office. Pudzer is the CEO of the holding company that operates the fast food chains Hardee’s and Carls, Jr., an avid blogger, and an outspoken opponent of raises to the federal minimum wage and the minimum salary requirements for “white collar” exemptions. Like most other nominees, Pudzer has no government experience, having spent his entire career in the private sector.

He can expect stiff resistance from Senate Democrats given his public pronouncements against minimum wage hikes.  An increase in the minimum wage remains increasingly popular according to a Pew Research poll over the summer which found that 58% of Americans favored an increase from $7.25 to $15.00/hour.  Pudzer’s unpopular stance will make him a lightning rod for Democrats looking to win back favor from working class voters who abandoned them in the presidential election.

Still, the question remains whether Pudzer’s nomination, if approved by the Senate, will have a measurable effect on labor policy.  No one realistically expected a Republican-dominated Congress to pass an increase to the minimum wage and the Final Rule which would have doubled the minimum salary for exempt “white collar” workers was put on hold by a federal judge in Texas just days before it was set to take place and an appeal of that decision is likely to be dropped by the Trump Administration. Worker-friendly initiatives like that seem dead on arrival in a DOL led by Pudzer.

It seems intuitive, therefore, that under Pudzer’s leadership, the DOL would also step back enforcement efforts.  But Trump relied heavily on white collar workers in the Midwest especially in order to win back traditionally blue states and a disengaged DOL would certainly harm that effort.  Plus, even though the DOL will be led by policymakers intent on limiting regulation, the career employees at DOL focused on enforcement will not necessarily be hampered by those constraints.

Still, expect the Pudzer nomination to draw significant opposition and publicity, although ultimately the opposition will not be enough to stop the nomination.

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