The Department of Labor is making headlines on multiple fronts. As one might expect from this administration, there’s good news for employers, including a business-friendly regulatory shift on joint employment that seems to be back on track. The less tidy news involves a federal court dismissal and more on an inspector general’s investigation, which originally came to light via a tabloid and keeps producing departures from Labor Secretary Lori Chavez-DeRemer’s inner circle.
The “old” Trump joint employer rule is back on the table
We recently told you about how the NLRB officially brought back its 2020 joint employer rule, through which businesses must exercise “substantial direct and immediate” control over core workplace conditions, shared with another business, before they can be classified as a joint employer. This is a higher threshold than the Biden standard requiring only that businesses potentially be able to influence these conditions, which increased liability for employers, even if they didn’t control wages, scheduling, benefits, etc.
Now, the DOL’s Wage and Hour Division has sent a proposed joint employer rule to the White House for review. This further signals a return to a narrower liability standard. The “new” standard is still under wraps but is expected to closely resemble the previous Trump DOL version, which involved a four-part test asking whether a company actually acted upon its power for those core workplace conditions.
A court blocked the DOL from unilaterally settling mine safety cases
Meanwhile, a federal appeals court rejected the DOL’s attempt to establish that the labor secretary can unilaterally close out mine safety penalty cases without going through an independent review panel. The dispute began when DOL moved to resolve contested citations worth millions of dollars against several coal companies, only to have the Federal Mine Safety and Health Review Commission’s (FMSHRC) ALJs push back on the efforts.
D.C. Circuit Court of Appeals Judge Karen Henderson wrote that the court lacks jurisdiction to intervene or overrule before the FMSHRC issues a final order. Henderson also found that waiting on that final order would not harm the DOL’s legal options, including the ability to challenge the order. So, the commission’s independent oversight role remains in place for now.
Scandal continues to swirl around the labor secretary’s office
Back in January, New York Post reported that Lori Chavez-DeRemer was under internal investigation by the DOL’s Office of Inspector General for alleged travel fraud, indulging in alcohol during work hours, and having an “‘inappropriate’ relationship with a subordinate.” The accusations led to four staffers, including Chavez-DeRemer’s chief of staff and her bodyguard, being placed on leave and then told to resign after allegedly assisting the secretary by concocting official travel plans for personal purposes.
Now, Director of Advance Melissa Robey has been terminated by the DOL. And unlike the other departed employees, Robey is talking to the press about what she calls an attempt “to embarrass and defame me in a failed effort to force me to resign.” Robey also alleges that, although she has been accused of racking up exorbitant travel expenses, she was made to drive an unsafe vehicle “on a 470-mile winter drive through North Dakota,” and “I did nothing wrong and have nothing to hide.” Meanwhile, the White House continues to stand behind Chavez-DeRemer.
One real development and some noise
To sum up these stories: The scandal is a distraction, the mine safety ruling is a procedural pause, and the joint employer rule is the one with real effects for how employers structure their workforce relationships. We’ll be keeping our eyes on that one.
