Presidential Powers, Fair Pay and Safe Workplaces Rule, DOL’s Overtime Rule, Competition for Vacant Positions

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This week’s stories include ...

(1) Supreme Court Limits Presidential Powers

Our top story: A Supreme Court ruling confirms limits on presidential appointment powers. Lafe Solomon served as Acting General Counsel (GC) of the National Labor Relations Board (NLRB) under President Obama for three years, two of which occurred while Solomon’s nomination for a full term was pending in the Senate. The Supreme Court found that, under the Federal Vacancies Reform Act, Solomon could not serve as Acting GC while his nomination was pending. This ruling will restrict President Trump’s and future presidents’ power to temporarily appoint their preferred candidates to the approximately 1,200 positions that require Senate confirmation. Mark Trapp, from Epstein Becker Green, has more:

"The court ruled 6-2, upholding a decision of the District of Columbia Circuit Court of Appeals that the Federal Vacancy Reform Act prohibited a person from serving as the acting head of a federal agency once the president nominated that same person to serve as the permanent head of that agency. Thus, in this case, President Obama exceeded his authority when he directed Lafe Solomon, a career NLRB attorney, to serve as the Acting General Counsel of that agency and subsequently nominated Mr. Solomon to fill that post permanently. As far as how narrow the decision is, it’s ... in the sense of a retroactive impact; it’s probably quite narrow."

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(2) Trump Blocks Fair Pay and Safe Workplaces Rule

The Fair Pay and Safe Workplaces rule is no more. Last Monday, President Trump signed a Congressional Review Act resolution from the House that rolls back the controversial Obama administration order. In October 2016, a federal judge blocked the government from enforcing most of the rule, including restrictions on arbitration agreements and the so-called “blacklisting” requirement. That provision would have required certain federal contractors to disclose labor law violations from the prior three years. But President Trump’s action scraps the rule entirely, including the requirement that contractors give workers detailed pay information each pay period.

(3) DOL Secretary Pick Says Overtime Rule Should Match Inflation

The president’s nominee to head the Department of Labor (DOL) says that the overtime rule could use an update. Alexander Acosta has indicated that, if confirmed for Labor Secretary, he would consider updating the salary thresholds for overtime pay to reflect inflation. During confirmation hearings, Acosta said he would first decide whether to continue the DOL’s appeal of the federal injunction on the overtime pay rule. He noted that it is unfortunate that the threshold has not been updated since 2004, but the $47,476 salary level that the Obama administration tried to implement would create “a stress on the system.”

(4) Employers Can Require Disabled Employees to Compete for Vacant Positions

Disabled employees who request reassignment as a reasonable accommodation can be required to compete for a vacant position. That’s according to a federal district court in Texas. The Equal Employment Opportunity Commission argued that a Dallas hospital could not require an employee to compete with nondisabled candidates for a vacant position when she requested reassignment after injury. The district court disagreed. The Fifth Circuit has never directly addressed this issue, but there is currently a split among the circuits.

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(5) Tip of the Week

Marc Schuback, former Senior Vice President, General Counsel, and Secretary of Aeropostale, has advice on best practices for documenting poor performance in the workplace:

"Proper documentation of poor performance will make the removal of a poor-performing employee as seamless as possible. ... Communicate the importance of documentation. Supervisors and managers who understand the importance of documentation will be more likely to follow the documentation policies and procedures. Train supervisors and managers on documentation practices. Training should be provided in written form. ... Also, don't be afraid to involve the HR and legal departments when performance issues arise.

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