Federal Appeals Court Decision Regarding NLRB Workplace Investigation Confidentiality Policies Fails To Answer Critical Question For Employers

In 2015, we reported to you about the National Labor Relations Board’s (NLRB) decision in the Banner Estrella Medical Center case, which placed significant limits on employers’ ability to request employee confidentiality during workplace investigations. As a reminder, in the Banner case, the NLRB found that Banner Estrella maintained a policy of instructing employees involved in workplace investigations to maintain confidentiality of the investigation. The NLRB further held that this type of blanket policy, or an otherwise universal instruction to employees, to keep workplace investigations confidential, violates Section 7 of the National Labor Relations Act (NLRA), which protects employees’ rights to discuss the terms and conditions of their employment with fellow employees. The NLRB stated that confidentiality instructions during investigations are only valid under the NLRA if, in each particular instance, the instruction is supported by facts showing a legitimate need for confidentiality, established on a case-by-case basis. The NLRB also found that the hospital’s employee confidentiality agreement, which expressly prohibited employees from discussing “private employee information” including information regarding employee pay and disciplinary action, violated Section 7. Following the 2015 decision, Banner Estrella sought review before the United States Circuit Court of Appeals for the District of Columbia, and the NLRB cross-applied for enforcement of its order. The D.C. Circuit issued its decision in this matter on Friday, March 24, 2017.

In two parts, the appeals court separately addressed both aspects of the case – the confidentiality agreement and the investigatory nondisclosure policy. Not surprisingly, the court enforced the NLRB’s finding that the hospital’s confidentiality agreement violated Section 7, stating that the agreement prohibited “the very discussion of terms and conditions of employment that Section 7 protects.”

However, for most employers, the crux of the case was the second issue: whether the court would find that the NLRB’s position on workplace investigation confidentiality was overreaching. Although the D.C. Circuit refused to enforce the NLRB’s finding that Banner violated the NLRA by maintaining a blanket investigatory confidentiality policy, this would-be victory for employers does not have the impact one might hope. That is because the court’s decision not to enforce this portion of the NLRB’s order was based solely on its conclusion that the record evidence in the case was insufficient to support a conclusion that the hospital had applied a blanket confidentiality policy in this case, or that it applied it in every workplace investigation, or even that it had instructed the employee to keep the investigation under scrutiny confidential. In other words, the appellate court did not address the substance of the issue – whether Section 7 prohibits broad confidentiality instructions in workplace investigations – instead deciding the case on somewhat technical grounds. Without guidance by the court otherwise, it can be presumed that at least for the time being (things may change when new NLRB members are appointed by the President), the NLRB will maintain its position that employers may only issue confidentiality instructions in workplace investigations in narrowly defined circumstances. Accordingly, employers may be well served to avoid using blanket practices or policies that all information provided in connection with workplace investigations be maintained in confidence, and to tailor any confidentiality instructions as narrowly as possible, based on the circumstances of each investigation in which they are issued.

President Trump Strikes Down Federal Contractor Blacklisting Rule

As anticipated, on March 27, 2017, President Trump repealed the so-called “blacklisting” rule that required federal contractors to disclose labor violations when bidding on new or renewed government contracts worth at least $500,000 (we reported on this topic on March 7). The President struck down the blacklisting rule, along with three other regulations aimed at protecting the environment and students, Monday afternoon during a White House signing ceremony.

“The rule simply made it too easy for trial lawyers to go after American companies and American workers who contract with the federal government,” White House press secretary Sean Spicer said.

Webinar: Focus on the Middle East – Key Labour and Employment Law Changes Across the Region

Please join us for a webinar when we will discuss the impact of recent key changes to the Labour Laws across the Middle East region. To help your business prepare in advance, we will also consider potential developments on the horizon from a labour and employment law perspective.

On 26 April 2017 at 9.00 a.m. BST (UK) (10.00 a.m. CEST, Noon GST (UAE)), Sarah Lawrence, a partner and a labour and employment specialist in our Dubai office, will focus on:

  • Nationalisation requirements, looking particularly at the UAE and Saudi Arabia
  • Further proposed changes to Nitaqat in Saudi Arabia
  • Changes to the Labour Law and kafala system in Qatar
  • New requirements for terminating local nationals in Saudi Arabia
  • Potential changes to maternity laws in the UAE
  • Changes forecast for the Oman Labour Law

The webinar will be a 50-minute presentation in English followed by a 10-minute online question and answer session.

Intended to help you manage labour and employment law risk across your international operations, the webinar will be of interest to both HR professionals and in-house counsel.

If you have not already pre-registered for this webinar, please register using the link below– all fields are mandatory.

This webinar is part of our 2017 series focusing on the key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.

Register

Dismissing for long-term sickness – when is enough enough?

Legally-speaking O’Brien – v – Bolton St Catherine’s Academy as reported last week is mostly about how much overlap there is between fairness for unfair dismissal purposes and justification in disability discrimination terms (in brief, very substantial).  It is also a fine illustration of how hard it is to overturn an Employment Tribunal judgement on appeal – both the EAT and the Court of Appeal agree that as a matter of good practice and common sense the wrong outcome was reached at the ET, but as they could not show that its decision was legally wrong as opposed to just ordinarily wrong, that outcome could not be disturbed.  Most importantly for present purposes, however, O’Brien also contains a number of potential pointers for employers considering a dismissal on grounds of long-term sickness.

In outline, Ms O’Brien was a Head of Department at the Academy. She was assaulted by a pupil there, became ill largely because of her perception that she was not adequately supported by the Academy afterwards and went off sick.  The Employment Tribunal found that, for whatever reason, both she and her GP had been much less helpful than her employer had a right to expect in relation to evidencing the nature of her illness and the prognosis for a successful return.  Some 17 months after she went off, with no sign of any return on the horizon, Ms O’Brien was dismissed on sickness grounds.

At her appeal, however, she produced a doctor’s note confirming without details that she was now fit to work and also some evidence that she had been recommended, and maybe undertaken, a new course of treatment. The Academy did not buy any of this – it was all too little, too late – and rejected her appeal.

The Employment Tribunal found the dismissal to be both unfair and disability discrimination. In particular:

  • The Academy had not considered properly at the time (or evidenced to the ET) the adverse impact of Ms O’Brien’s absence in terms of extra cost, burden on others, administrative disruption or prejudice to teaching standards. Even though you might think (as did both the EAT and the Court of Appeal) that this would be too obvious to need mention for a Head of Department away for 17 months, the ET said that the hoop still needed to be gone through.
  • While the enormous scepticism with which the Academy greeted Ms O’Brien’s last minute and largely unsupported assertion of fitness was fully understandable, both unfair dismissal and disability principles required that it should have checked this with its own OH or external medical advisers before dismissing it out of hand.
  • The Academy had not shown that it was necessary to dismiss at that point in time. If there were a prospect, even a faint one, that Ms O’Brien might soon be fit to return in the near future, the Academy needed some good reason why it could not have given it a go – after so long, essentially, how much further harm would have been done by another two or three months while she sought to reintegrate herself?

Lessons for employers

This is a very unattractive decision for employers, seeming to impose a standard well above whether the dismissal was within the range of reasonable responses. There are two ways you can react to it:

  • Although the points picked on by the ET might well seem like going above and beyond, in fact none of them would have been very difficult to do and the dismissal would then have been beyond reproach – a question of being seen to consider those factors as much as necessarily doing anything about them.
  • Or slightly less safely, share the same fabulously trenchant views as the dissenting Judge in the Court of Appeal, i.e. the requirement for express evidence of harm arising from the absence was “unreal”, Ms O’Brien’s evidence of fitness was “demonstrably half-baked”, that her GP’s note “evidenced no real engagement whatsoever” with her psychological issues and that overall the dismissal was “unacceptably purist”.

P.S. Hamstrung by its inability to overturn the ET’s decision on a valid question of law, the Court of Appeal nonetheless claimed the last word.  It urged the parties to settle and reminded Ms O’Brien discreetly but unmistakeably that if she didn’t, an ET deciding compensation would bear in mind whether she was actually now fit to work and whether going through the hoops at 1-3 above would have made any practical difference.  If not in either case, was the clear message, she might come out with little or nothing.  Even if you do go down on issues of pure process like this, therefore, the financial penalty may be very limited.

Supreme Court Reins in Administrative Overreaching of NLRB

On March 21, the U.S. Supreme Court ruled that one-time acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon improperly served as the agency’s Acting General Counsel while he awaited U.S. Senate confirmation to a permanent appointment, upholding a U.S. Court of Appeals for the D.C. Circuit ruling that most of his three-year tenure violated the Federal Vacancies Reform Act (FVRA). Congress passed the FVRA in 1998 to tighten control over the presidential appointments process. The FVRA requires the executive branch departments and agencies to report to Congress and Government Accountability Office (GAO) information about the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation.

A career NLRB attorney, Lafe Solomon was named the NLRB’s Acting General Counsel on June 21, 2010 by President Obama after Ronald Meisburg’s resignation in June 2010. Six months into Solomon’s service, in January 2011, Obama nominated him to be the agency’s General Counsel on a permanent basis. Solomon’s nomination was returned by the Senate, and Obama later nominated Richard Griffin, who was confirmed in the fall of 2013. But, in the interim, Solomon ended up serving more than three years as the labor board’s chief prosecutor, issuing complaints and litigating unfair labor practice claims against employers (and occasionally unions).

The lower federal appeals court had concluded that Solomon became ineligible to serve as the NLRB’s Acting General Counsel under a provision of the FVRA that prohibits a person from being both the acting officer and the permanent nominee. The D.C. Circuit vacated an NLRB decision that ambulance company SW General Inc., which operates as Southwest Ambulance, violated the National Labor Relations Act based on the fact that the underlying complaint was issued by Solomon at a time that he was not authorized by law to issue that complaint. In appealing the D.C. Circuit’s ruling to the highest court, the NLRB asked the justices to consider the question of whether the FVRA’s precondition on service in an acting capacity by a person nominated to permanently fill a vacant office applies only to first assistants who assume the office under the law’s so-called default rule, or whether the FVRA also limits acting service by officials who assume acting responsibilities under two other subsections of the statute.

The NLRB argued to the Supreme Court that Solomon was never a first assistant to Meisburg and never assumed the duties of General Counsel under the FVRA’s “default provision,” which says that the first assistant to the outgoing officer takes over the job in an acting capacity in the event of a vacancy. As a result, the prohibition against Solomon serving while also being the permanent nominee didn’t apply. The agency also argued that Solomon assumed the Acting General Counsel role under a separate FVRA provision that allows the President to fill an open agency slot by appointing a person who has already held a high-level position within that agency. In a 6-2 vote, the justices upheld the D.C Circuit’s August 2015 ruling that Solomon served in violation of the FVRA, holding that “[s]ubsection (b)(1) [of the FVRA] prohibited Solomon from continuing his service as acting general counsel once the president nominated him to fill the position permanently”.

As we previously reported on this case in August of 2015, when the decision of the D.C. Circuit came out in SW General v. NLRB, this ruling does not mean that all complaints issued by the Acting General Counsel between January 5, 2011 and November 4, 2013 are void. However, if the employer raised an FVRA violation as a defense before the Administrative Law Judge or as an exception to adverse ALJ findings before the NLRB, then under this ruling, the complaint against it likely would be declared void. In most cases, that should end the matter, as the National Labor Relations Act’s six-month statute of limitations should prohibit the refiling of a defective, voided complaint.

Religious dress revisited – is the fuss justified?

“Bosses can ban burkas, scarves, crosses” shouts the front page of last Tuesday’s Metro, followed by a commentary far too short to explain that this is almost always untrue.

This is the resurrection of an old debate concerning the extent of your right to manifest your religion at work through how you dress. When last seen, the European Court of Justice had decided in a Eweida –v- British Airways that it would be religious discrimination to ban an employee from wearing a visible crucifix at work unless there was a good reason for it, for example health and safety http://www.employmentlawworldview.com/human-rights-court-rules-on-religious-symbols-at-work/. The two cases which led to yesterday’s headline (one of which – spoiler alert – said that bosses couldn’t ban religious dress) were considering slightly separate points. Bougnaoui –v- ADDH considered whether it would be discriminatory for the employer to react to a customer complaint by banning the wearing of a Muslim head scarf, while Achbita –v- G4S asked whether it would still be discriminatory if the employer banned all outward signs of religious or political belief.

In Bougnaoui the ECJ was clear – if you use the potentially discriminatory views of your customers as a ground for imposing dress restrictions on your employees, that will be unlawful.  Ms Bougnaoui wore a headscarf at work but was asked to remove it after a customer complained.  That was just visiting the customer’s views on the employer’s staff and so was unlawful.

However, in Achbita the employer maintained a written, comprehensive and consistent ban on the wearing of all religious and political symbols, regardless of the faith or political affiliation in question.  It did this because it wished to present a picture of overt neutrality among its workforce.  This was in turn a result of the nature of its business, supplying security and reception staff to a variety of Government and private sector clients, some in highly confidential and security-critical environments.  It did not want those customers to have any reason, real or (particularly) perceived, to doubt the commitment, loyalty or intentions of the people G4S supplied to them.

The ECJ had to find that there was no direct discrimination on religious grounds since all religions and beliefs were treated exactly the same. Ms Achbita’s headscarf was no more or less welcome than would have been Ms Eweida’s little crucifix.  It then asked whether G4S’s stance could constitute unlawful indirect discrimination, i.e. whether it was the imposition of a provision, criteria or practice (the ban on religious indicators in what you wear at work) which prejudiced more people with a particular characteristic than not (religion), affected the individual employee (Achbita’s headscarf) and wasn’t justifiable.

The question here therefore revolved around whether G4S’s ban was justifiable, i.e. a proportionate means of achieving a legitimate aim. The objective of overt neutrality was accepted as a legitimate aim given the very particular circumstances of the services G4S provided and to whom.  This will obviously be very much the exception as corporate objectives go, hence the misleading nature of the Metro’s headline.  But even given the legitimacy of the objective, was a blanket ban on religious or political wear a proportionate means of achieving it?

Reluctantly the ECJ decided that it was, largely since there was no other means of achieving that objective. Nonetheless, to satisfy that test G4S had to show that the policy was enforced regardless of religion and no matter how mainstream (and so probably uncontroversial) the political belief.  That meant not just the items in the title but also what the employee manifested through badges worn and bags carried, etc.   It meant showing there was rigorous enforcement of the rule – obviously you could not claim it as necessary if breaches were ignored.  It meant also that G4S had to show that it had considered means by which the adverse impact of the rule had been minimised as far as practicable, for example by applying the rule only to those in sensitive public/client-facing roles and looking at the possibility of transferring affected staff out of those jobs where possible.

The ECJ’s decision has been greeted with predictable dismay by religious leaders. “It will lead to an increase in hate crime”, says one, and “shows that faith communities are no longer welcome”, says another, both equally without supporting evidence.   The issue here however is not supressing religious belief at all, but in allowing businesses where it really matters (a tiny minority only) to provide a service where its customers do not have grounds to push back against individuals on perceived political or religious grounds.  At one level, professional opportunity could thereby be said to be increased, not limited.

But I repeat – the businesses in which overt neutrality will be a legitimate aim will be very few in number indeed. These cases do not alter for a moment the basic rule that limiting religious manifestation in the workplace will be unlawful discrimination unless you have an exceptionally good reason to do so.  But then you are left with the headline: “Bosses Can’t Generally Ban Burkas”, etc. and that somehow lacks the same punch.

Travel Ban Executive Order Update: The Constitutional Tug-of-War Continues

Last week we saw another round in the battle between the Executive and Judiciary branches over the President’s travel ban impacting nationals Syria, Iran, Libya, Somalia, Sudan, and Yemen. Federal District Courts in Hawaii (State of Hawaii v. Trump) and Maryland (International Refugee Assistance Project (“IRAP”) v. Trump) stayed the implementation of the revised Travel/Refugee Ban Executive Order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (EO2). The U.S. District Court for the District of Hawaii issued a temporary restraining order (TRO) enjoining the government, nationwide, from enforcing or implementing Section 2 (90-day travel ban impacting nationals of the 6 countries) and Section 6 (the 120-day suspension of the U.S. refugee program). Concurrently, the U.S. District Court for the District of Maryland issued an injunction barring enforcement, nationwide, of Section 2(c) (90-day travel ban impacting nationals of the 6 countries) of the EO2. Both decisions indicated that the revised EO2 did not include “constitutionally significant” changes from the first EO and the Plaintiffs are likely to prevail on their claims that portions of the EO2 violated the Establishment Clause of the First Amendment of the United States Constitution.

The Department of State (DOS) announced it will suspend implementation of the provisions of the EO2 as required by the relevant court orders and that U.S. Embassies and Consulates will continue to process visas for nationals of Syria, Iran, Libya, Somalia, Sudan, and Yemen. However, It should be noted, that the suspension of the Visa Interview Waiver Programs (also known as the “drop-box”) (Section 9 of EO2) was not stayed by these court orders.  Therefore, many nonimmigrant visa applicants, of all nationalities, will be required to undergo an in-person interview at the US Embassies and Consulates unless specifically exempted by statute or exempted by the EO2 (those traveling with diplomatic visas or traveling for the purpose to conduct meetings or business with the US government).

In a related development, during a busy week of judicial activity, the Ninth Circuit United States Court of Appeals issued an Order Denying En Banc Reconsideration, with Concurrences and Dissents of its prior decision upholding the TRO staying the first EO in State of Washington & State of Minnesota v. Trump. The Order acknowledged its original decision became moot after the government moved to dismiss its appeal after publishing the revised EO2. Nevertheless, this Order included a 26 page dissent, authored by Circuit Judge Bybee and joined by four other Circuit Judges, arguing that the full Court of Appeals should have reconsidered the three-judge panel’s decision. Judge Bybee wrote that the courts have a “duty to preserve the liberty of the people by keeping the enormous powers of the national government separated . . . We will yet regret not having taking this case en banc to keep those lines of authority straight.”

No doubt, the Travel Ban saga will continue. In State of Hawaii v. Trump the Administration submitted a Motion for Clarification of TRO to limit the scope of the Order but the Judge denied this request on Sunday, March 19th. While in IRAP v. Trump, the Administration filed a Notice of Appeal and the matter will now go before the Fourth Circuit Court of Appeals, based in Richmond, Virginia.

Long Live Grammar Nerds

A federal appeals court ruling in a case coming out of Maine involving overtime pay and dairy delivery drivers didn’t come down to trucks, milk, or money. Instead, it revolved around one of the biggest debates in the “grammar nerd” world – the “Oxford comma.” Do you remember the Oxford comma from your grammar school days?  It is used before the words “and” or “or” in a list of three or more things.  Also known as the serial comma, its advocates say it clarifies sentences in which things are listed.  Although not all writers or publishers use it, it can make the meaning of a sentence clearer.  Nonetheless, the debate over its use is usually pretty inconsequential.  So how did it play center stage in a recent class action lawsuit by dairy truck drivers in Maine?

Maine’s wage payment laws say employees engaged in the following activities are not eligible to receive overtime pay: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” The drivers argued that the lack of a comma between “shipment” and “or distribution” meant the legislation applied only to the single activity of “packing,” rather than to “packing” and “distribution” as two separate activities.  And because the drivers distribute the goods, but do not pack them, they argued they were therefore eligible for several years of unpaid overtime pay.

On March 13, 2017, the First Circuit Court of Appeals agreed, finding the language to be grammatically ambiguous. Because of that lack of clarity, the drivers won their appeal and were held to be eligible for overtime pay.  The court observed that labor laws, when ambiguous, are designed to benefit the laborers.  “For want of a comma, we have this case,” the court wrote. David Webbert, the lawyer who represents the drivers, declined to take a personal position on the use of the Oxford comma.  But he did state, “if there is any doubt, tear up what you wrote and start over.”

They think it’s all over for holiday pay disputes – is it now?

Two weeks ago, the Supreme Court refused British Gas consent to appeal the Lock holiday pay case any further, finally putting an end to the five year saga of whether an element in respect of commission should have been included in Mr Lock’s holiday pay.  Mr Lock himself has long lost interest and left British Gas ages ago, but the issue has sailed on regardless, the length and route of its journey unknown but its destination (a compensation ruling in the Leicester Employment Tribunal) pretty much inevitable.

Companies which have been holding off individual and collective holiday pay grievances and claims now find the last door of their bastions kicked in by the Supreme Court, leaving them defenceless. Or do they?  Perhaps time for a quick re-cap of the arguments still open to employers facing actual or threatened holiday pay claims:

  • Remember that section 23(4A) Employment Rights Act 1996 limits claims to 2 years back in any proceedings started after 1 July 2015.
  • These holiday pay rulings only apply to the basic minimum 4 weeks’ leave under the Working Time Directive, not the additional 1.6 weeks added by the domestic Working Time Regulations. In some cases, making the distinction may be more trouble than it is worth for employers, but where commission or overtime forms a substantial percentage of the employee’s earnings, the saving may be significant.
  • As matters stand, judicial opinion favours the view that an employer can decide which holidays are from the basic 4 week allowance and which are out of the supplementary 1.6 weeks. The point is not beyond argument, but may be useful in any case where the employer can establish a 3 month gap between the last day of one year’s basic holidays and the first day of the next’s, as that may act to prevent the employee claiming that the prior year’s holidays were part of a series of deductions.
  • Most of all, however, do remember the principle underlying this whole series of cases, i.e. that the employee should not be “disincentivised”,i.e. worse off as a result of his taking the EU minimum leave entitlement, hence the consistent court rulings that he must receive his “normal pay”. Nothing in any of the decisions requires him to be better off by taking holidays than had he not done so. Ultimately, therefore, the question of that loss must either be conceded by the employer on the grounds of convenience or statistical inevitability (like Mr Lock, who earned commissions daily) or – surely – established by the employee http://www.employmentlawworldview.com/holiday-pay-in-the-uk-finding-the-key-to-lock/.
  • That burden of proof is not high, on a balance of probabilities rather than beyond all reasonable doubt. Nonetheless, I think it will represent a pretty tough call for many employees where the link between being at work and earning commission is much more elastic than Mr Lock’s case. Does a day off really prejudice your commission earnings? Are you sure you didn’t work extra-hard to close the same deal before you went on leave or after you returned?  This line of reasoning obviously works better for short holidays than long ones – if the employee could be away for a month without its affecting his output, you would have to begin to question what he was actually doing.  But that will be a function of the industry, of market conditions, of the individual’s past record, and not simply some mechanical ratchet off how long he is out of the office.
  • This is not an argument without judicial support. In a number of recent cases, the Judges have begun to confront the reality that someone soon is going to have to go beyond simply agreeing that commission (and possibly also overtime) must be taken into account in holiday pay and actually saying how. In Patterson –v- Castlereagh Borough Council, the Northern Ireland Court of Appeal suggested that “occasional voluntary overtime” could be left out of consideration http://www.employmentlawworldview.com/ni-court-of-appeal-thickens-uk-holiday-pay-plot/. In Brettle –v- Dudley Metropolitan Borough Council, http://www.employmentlawworldview.com/holiday-pay-in-the-uk-the-great-unanswered-question/, overtime worked “only rarely” was also excluded.  In Lock at the Court of Appeal stage, questions were asked (but not answered) around whether you should take commissions into account if there are some months where you don’t earn any.    http://www.employmentlawworldview.com/court-of-appeals-holiday-pay-decision-offers-glimmer-of-hope-to-employers/.
  • But even though the case is based on EU law, don’t rely on Brexit as the key to Not only is our exit from the EU (and the technical disapplication of the Working Time Directive) still two years away, but all the signs are that one of the prices the EU may extract for still talking to the UK at all is the preservation of EU-derived labour principles in our domestic employment law.

DOL Funding Slashed by 21 Percent Under President’s Proposed Budget

President Trump released his initial budget outline March 16, 2017. It includes $9.6 billion for the Department of Labor (DOL), a reduction of $2.5 billion from its 2017 funding level.

The impact of a cut of more than 20% of the DOL’s budget will necessarily mean that the agency will have to change its focus. What will get pared down or even eliminated as a consequence of this budget cut (if approved) is unclear, although it is likely that the agency’s rulemaking and enforcement efforts will likely take a hit. The administration wants to reduce jobless benefits costs, eliminate the Bureau of International Labor Affairs’ grant funding, and close at least some Job Corps centers. The White House also said it would scrap certain “ineffective, duplicative, and peripheral” DOL job-training grants.

The White House Office of Management and Budget proposal lists several DOL grant programs targeted for cuts, but otherwise says little about how the President plans to cut back the agency charged with administering many of the nation’s labor laws. In the absence of specifics, one question is whether in addition to program cuts, will the agency’s staff also be cut, and if so, by how many employees? The plan at this time is vague on details about specific sub-agencies, which is an indication that the White House may be waiting for advice from a confirmed labor secretary.  The confirmation hearing for President Trump labor nominee Alexander Acosta, which was set for March 15, 2017, was pushed back a week because the chairman of the committee overseeing his confirmation was traveling with the President to a rally in Nashville on that date. Mr. Acosta will now appear before the committee on March 22, 2017.

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