Saturday, October 7, 2017

Labor & Employment Roundup

Some recent labor & employment news to catch up on: 

  • The NLRB is back at full strength, at least for a while, now that William Emmanuel has been sworn in. Terms that are set to expire soon are Chairman Miscimarra (Republican) on Dec. 16, 2017 and Mark Pearce (Democratic) on Aug. 27, 2018. They're close enough that we may see a package deal for a Republican and a Democratic nominee, but we'll see.
  • Kate O'Scannlain, a partner at Kirkland & Ellis has been nominated to be Solicitor of Labor. And yes, she is the daughter of Judge Diarmuid O'Scannlain on the Ninth Circuit.
  • The Ninth Circuit put the Uber driver classification cases (O'Connor et al.) on hold. The court decided that it should pause the numerous class action suits pending the Supreme Court's decision on whether the NLRA bars class-action arbitration waivers.
  • Speaking of the Court's class action arbitration case (Epic et al.), oral argument on the case was held on Oct. 2. SCOTUSBlog has a good summary of the argument--bottom line, it doesn't look good for the argument that the NLRA prevents these class-action waivers. Justice Gorsuch didn't ask any questions and his like of textualism suggests at least a chance that the NLRA argument could win. But I have a hard time believing that he's going to buck the trend in the Court of interpreting the Federal Arbitration Act in a way that upholds arbitration agreements.

-Jeff Hirsch

Labor and Employment News, Labor Law | Permalink


Pretty sloppy facts and analysis in the first hit there-- Miscimarra's name is spelled like that, Pearce's first name is Mark, Pearce's term expires in August 2018, not August 2017, and there is absolutely no incentive at all for the administration or the Senate to wait until next August and confirm new Board members with a package deal when they could simply install another Republican on a party-line vote and then do nothing for the rest of Trump's term. Keep in mind that there's no filibuster for nominees anymore. Why would they seek a compromise when they have all of the power?

Posted by: Dave | Oct 11, 2017 1:44:05 PM

Thanks for the corrections, Dave (I clearly didn't proofread well enough on that one), but I stand by the possibility (albeit remote) of a package deal. The custom of having two members from the minority party, while not statutorily required, is quite strong. I wouldn't bet money that the current administration wouldn't try ignore that, but I'm also not convinced that this custom won't still play a role in future nominations.

Posted by: Jeff Hirsch | Oct 15, 2017 7:36:04 AM

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