Monday morning musings for workplace watchers.
NLRB Nominations|NY Pay Transparency
Robert Iafolla: Democrats on the National Labor Relations Board will soon see their numbers drop by one, but their party has a plan to quickly remedy that loss. The same cannot be said for the Republican board seat that’s been vacant for eight months.
Senate Democratic leadership has laid the groundwork for Member Gwynne Wilcox—whose term expires Aug. 27—to get a confirmation vote after lawmakers return post-Labor Day.
But in a break from traditional practice, Wilcox’s nomination for a second term wasn’t paired with a candidate for the open Republican seat on the five-member board. Such bipartisan packages can eliminate the need for hearings and let nominees coast through the confirmation process without formal roll call votes.
Two veteran management-side labor lawyers—Terrence Kilroy of Polsinelli PC and Mark Carter of Dinsmore & Shohl LLP—have been under consideration for the seat Republican John Ring vacated in December, according to NLRB watchers. Senate Republican leadership selects GOP board members during Democratic administrations. Kilroy and Carter declined to comment.
Neither the Biden administration nor Senate Republican Leader Mitch McConnell (Ky.) clarified who’s responsible for turning down the easy opportunity to fill all five seats on the NLRB. The White House didn’t respond to requests for comment, and McConnell’s office said it will “be sure to let you know if we have anything to share.”
“One party might be playing hardball,” said Sarah Binder, a political science professor at George Washington University. “If it was the case that the White House did get the GOP name, didn’t like it, and wanted to flex and get Wilcox confirmed, then it’s Democratic hardball.”
Leaving the NLRB with three Democratic members and one Republican ensures each three-member board panel—which decides most non-precedential cases—is controlled by a Democratic majority. That would likely mean employers will have a more difficult time prevailing than if the board had its full complement of members.
But if McConnell didn’t send a choice to the White House, then he’s playing hardball, said Binder, a senior fellow at the Brookings Institution who’s written extensively on Congress and legislative politics.
In that scenario, one possible GOP strategy would focus on ginning up pressure on swing state Democrats to oppose Wilcox’s nomination and take a shot at keeping the board at three members, she said.
Beyond making it harder for the NLRB to issue rulings, a 2-1 board would force Chair Lauren McFerran (D) to wrestle with the notion that the board shouldn’t issue new precedents without three members in the majority. But that idea is disputed and, at best, a relatively new norm without legislative backing.
Regardless, a strategy pinned on blocking Wilcox faces tough odds. She was confirmed in 2021 with bipartisan backing, and Sen. Lisa Murkowski (R-Alaska) voted for her in committee.
A Wilcox confirmation would leave Republicans with little leverage to get the empty GOP seat filled. That has some management-side lawyers concerned it could remain open until December 2024, when McFerran’s term expires.
“We’ve seen this movie before,” Michael Lotito of Littler Mendelson PC said of minority-party NLRB seats being left unfilled.
—With assistance from Diego Areas Munhoz
Chris Marr: A New York state law requiring salary ranges in job postings takes effect next month, leaving employers to navigate another new pay transparency mandate that’s narrower in some ways and broader in others than its New York City counterpart.
The statewide measure set to go live Sept. 17 adds to a quickly expanding list of state and local laws that require more upfront disclosure of pay. California, Colorado, Washington state, and New York City, plus a handful more local governments, already require that employers list a salary range in their job ads. Similar laws are set to take effect in Hawaii on Jan. 1, 2024, and in Illinois a year later.
The laws are aimed at shrinking the nation’s wage gaps by helping often underpaid categories of employees such as women and workers of color secure salaries that are more in line with their White, male peers.
Figuring out which laws apply to job listings for remote positions is one of the trickier aspects of compliance, and the New York state law will add a new wrinkle to that question, said Maria Papasevastos, a New York-based labor and employment lawyer with Seyfarth Shaw LLP.
The New York state law isn’t written to cover all remote positions that could be performed inside the state, unlike the New York City law, which does apply to ads for remote jobs that could be performed inside the city, she said.
But the state law does cover jobs that will be performed outside the state yet report to a supervisor or office located within New York.
“It may not be so clear whether the person will be reporting to someone in New York,” Papasevastos said. “That’s kind of the key concern as New York state comes out.”
Among the other variations in the New York state law, it requires employers to include a job description in postings. Also, it doesn’t clearly provide a private right of action for employees or job applicants to sue over violations, leaving enforcement up to the state labor department.
It also omits the no-penalty provision for first-time violations that New York City’s law includes. The city gives first-time violators a 30-day window to acknowledge and cure a violation to avoid a fine.
It’s early to know how aggressively local and state governments will enforce this latest wave of pay transparency laws, as only Colorado’s law has been in effect for more than a year.
As of June, Colorado’s labor department had fined five companies a total of $237,000 for alleged violations of its law, including Lockheed Martin Corp. and Twitter, which is now known as X Corp.
A New York City enforcement agency had received 300 tips about potential violations through late May, but said it was focusing on encouraging companies to comply rather than issuing fines for now. The city law took effect Nov. 1, 2022.
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