Scalia Officially Nominated (Beltway Buzz, September 6, 2019)

Author:Mr James J. Plunkett
Profession:Ogletree, Deakins, Nash, Smoak & Stewart

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.

Scalia Officially Nominated. Although the Buzz mentioned the nomination of Eugene Scalia to be secretary of labor seven weeks ago, the management-side attorney wasn't officially nominated until August 27, 2019. Will this delay push back Scalia's confirmation hearing, U.S. Senate vote, and potential confirmation? Perhaps. Nevertheless, the Buzz still thinks that the process will get rolling in the next few weeks. Will the delay impact the ongoing regulatory agenda at the U.S. Department of Labor? Stay tuned.

NLRB to Address Offensive Conduct Standard. Over the last eight years or so, the National Labor Relations Board (NLRB) has come under criticism for protecting workers who use profane or racially or sexually charged language in the workplace simply because the offensive comments were made in a context that included some element of Section 7 activity. Critics suggest that such decisions conflict with employers' duties under federal law to provide workplaces that are free of harassment. In acknowledging this criticism, on September 5, 2019, the NLRB solicited public input on whether it should "adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA)." Briefs are due by November 19, 2019.

NLRB Rules on Misclassification. In February 2018, the NLRB asked the regulated community, "Under what circumstances, if any, should the Board deem an employer's act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1) of the Act?" On August 29, 2019, in Velox Express, Inc., the Board answered that question when it ruled that an employer's misclassification of its employees as independent contractors does not, by itself, violate the National Labor Relations Act. The decision puts to bed—at least for the time being—the novel "misclassification is a violation" theory previously advanced by former general counsel Richard Griffin but not addressed by the Board.

EEOC Oversight. Ever since the 2018 elections ushered in Democratic hegemony in the U.S. House of Representatives, the Buzz has often discussed federal legislators' use of their oversight authority as an effective check of the...

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