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Administrative Law Judges at the NLRB, Buyouts & Right to Work in Missouri: Beltway Buzz, August 10, 2018

ALJs A-OK at NLRB. In a June 2018 case called Lucia v. Securities and Exchange Commission, the Supreme Court of the United States ruled that Securities and Exchange Commission (SEC) administrative law judges (ALJs) were not properly appointed under the Constitution’s Appointments Clause because they are inferior officers who must be appointed by the president, a court of law, or a head of department. The SEC’s ALJs, the Court found, were appointed by the SEC’s commissioners’ staff, not the commissioners themselves, so received constitutionally invalid appointments. The decision has understandably caused quite a stir within federal agencies where there are over 1,900 administrative law judges, so agency officials are taking steps to ensure that their ALJs have been properly appointed. For example, well before the Court issued its decision, Secretary of Labor Acosta ratified the appointments of the U.S. Department of Labor’s (DOL) ALJs. As for the National Labor Relations Board (NLRB) (which has 34 ALJs), in a recent case challenging the appointment of one such judge, a unanimous NLRB ruled that its ALJs are properly appointed because, while they are indeed inferior officers, they are appointed by the Board itself, which is the “Head of Department.” Of course, this decision can still be appealed, so this issue may not be over just yet at the Board.

NLRB Buyouts. In other NLRB news, the Board announced this week that it would be offering buyouts to certain employees “in order to better manage its caseload and workforce needs.” The Buzz will be curious to see what impact the potential reduction in staffing levels will have at the Board. For example, will this effort impact the timing of union elections?

Right-to-Work Vote in Missouri. On Tuesday, August 7, 2018, Missourians voted in a referendum to overturn the state’s 2017 right-to-work law. This means that workers in unionized workplaces in Missouri will be forced to join or pay fees to the union as a condition of employment. Viewing the referendum as a direct threat to their compulsory dues revenue stream, big labor spent heavily on the vote—upwards of $15 million, according to the Wall Street Journal. Twenty-seven states now have right-to-work laws.

Beryllium Enforcement Delayed. Earlier this week, the Occupational Safety and Health Administration (OSHA) issued a final rule delaying until December 12, 2018, the compliance date of certain ancillary requirements of its 2017 beryllium rule. More specifically, enforcement will be delayed for the following ancillary requirements: beryllium work areas and regulated areas, written exposure control plans, personal protective clothing and equipment, hygiene areas and practices, housekeeping, communication of hazards, and recordkeeping. According to the final rule, the purpose of the delay is to allow OSHA time to draft a notice of proposed rulemaking to clarify certain provisions of the rule in accordance with a settlement agreement it has entered into with stakeholders.

NY AG: PAID is in the Shade. The State of New York is suing the DOL because it wants to know why the agency is helping employers comply with the Fair Labor Standards Act. Following in the litigious footsteps of former New York attorney general Eric Schneiderman (who resigned in May over allegations of physical abuse against women), New York Attorney General Barbara D. Underwood filed a complaint alleging that the DOL failed to respond to a Freedom of Information Act (FOIA) request about the development of the PAID program, which encourages and facilitates the voluntary resolution of wage and hour violations. Regardless of the merits of the underlying document dispute, the Buzz doesn’t anticipate that the litigation will impact the pilot program itself, which is set to expire in early October.

President Trump’s Pen and Phone. Fish gotta swim, birds gotta fly, and U.S. presidents—regardless of party—gotta issue executive orders. The American Presidency Project tracks executive orders and notes that President Trump has issued 77 executive orders while in the White House. This puts him on a pace of 4.5 executive orders per month through June of this year. In comparison, President Barack Obama issued 2.9 executive orders per month (for a total of 276) and President George W. Bush issued 3 executive orders per month (for a total of 291). Of course, FDR blows these numbers out of the water, as he averaged over 25 executive orders each month in his 12 plus years in the White House (3,721 total).

The Mistake on the Lake. Sixty-five years ago this week—on August 7, 1953—President Dwight D. Eisenhower signed into law a joint resolution of Congress that officially granted Ohio statehood. 1953 is a little late for the Buckeye State, dontcha think? Well, it turns out that those knuckleheads in the 8th Congress essentially lost Ohio’s 1803 application for statehood when they failed to ratify Ohio’s state constitution. This means that Ulysses S. Grant, Rutherford B. Hayes, James A. Garfield, William McKinley, William H. Taft, Warren G. Harding, William H. Harrison, and Benjamin Harrison—all native Ohioans—became U.S. presidents despite not appearing to meet the “natural born citizen” requirement of Article II, Section 1 of the Constitution. Oops! The statehood goof was spotted by some brainy Ohio teachers who couldn’t locate any documentation about Ohio’s statehood during a field trip to the Library of Congress in 1952. Subsequently, Ohio representative George H. Bender introduced legislation on January 13, 1953, that eventually retroactively granted Ohio statehood as of 1803. So while some may blame the Cleveland Brown’s historical ineptitude on the curse of Art Modell, maybe the roots of the problem go all the way back to their home state’s inauspicious start.

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About this Author

James J Plunkett Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins
Senior Government Relations Counsel

James J. Plunkett works as a Senior Government Relations Counsel in the Governmental Affairs practice of Ogletree Deakins.   

Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace.  This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues.

Prior to joining the Chamber, Jim was an associate at a national law firm...

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