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Irrational Obama-Era Labor Regulations Overturned

Hooters Girls

The three-member Republican majority at the National Labor Relations Board (NLRB) reversed course on a number of the Obama board's most controversial rulings as Chairman Philip Miscimarra's term ended reports the Washington Free Beacon's Bill McMorris.

Employers will face a decidedly more pro-business atmosphere on a number of issues from workplace rules to union organizing parameters and liability guidelines for contractors says McMorris.

However, the NLRB's decisions, while a major boost for employers, should not be seen through the same prism of other aspects of the president's de-regulation agenda claims McMorris. While Trump has used the power of the pen to advance pipeline expansions and rein in regulators at Environmental Protection Agency, labor policy has largely focused on resetting long-standing precedent that Obama's labor board overturned.

"What the board has now done is restore some of the norms [of labor law]. The radical changes all occurred over the previous eight years," Rick Grimaldi, a member of the Labor Relations Practice Group at Fisher Phillips told McMorris.

Last week the board voted 3-2 to overturn a controversial 2015 decision holding employers liable for labor violations committed by franchisees or subcontractors. McMorris reports the Obama board threw out decades of precedent that only held the parent company liable if they directly controlled the employment conditions that led to an apparent violation of worker rights.

Michael Lotito, an attorney at Littler Mendelson, called the board decision a shift "of earthquake proportion" and laid the blame on overzealous regulators according to the Washington Free Beacon’s report.

"If you want a fundamental change in statute, what this board is saying is it is for Congress to make … not the agencies," he said. "If it hadn't have been for that radical approach for the reversal of decades of established law, we wouldn't have needed the new decision."

While the ruling was a welcome development for the franchise industry, the board also overturned an Obama era policy that affected all employers and could prove the most important development as the Trump administration heads into 2018 claims McMorris. The board ruled to rein in agency regulators' ability to police employee handbooks. Beginning in 2013, the agency adopted the view that any rule in a rulebook—regardless of whether it played a part in worker's complaint—could be construed as a violation of federal labor law.

The new scope led to irrational board decisions, including striking down a Hooters franchise policy requiring employees to be polite to co-workers and guests. David Phippen, a management-side attorney at Constangy, Brooks, Smith, & Prophete LLC., said the agency used the rulebook standard to gain leverage on employers and force settlements. He said something as standard as an anti-sexual harassment policy could trigger an NLRB investigation.

"They [Obama's NLRB] just wanted to include more people in the scope of their power, to increase their authority over the workplace," he said. "They were acting like little emperors."

Phippen told McMorris the decision to overturn the 2004 decision would keep the board more focused on the specifics of future complaints, rather than going on fishing expeditions to force a settlement. He does not expect such a development to have a chilling effect on workers defending their rights because "there are many ways to engage in concerted activity while remaining within the scope or employer rules and remaining civil."

Charles Caulkins, an attorney at Fisher Phillips based out of Florida, said the 2013 employee handbook guidance represented an extreme shift even for a partisan agency like the NLRB, which is designed to seat three members of the president's party and two from the opposition. The GOP-controlled board's reversal of so many major accomplishments policy changes from the Obama era should give future board members pause before overturning long-lasting precedent.

"I don't think I've ever seen the pendulum swing so far in one direction … I think the NLRB is going to continue to try and pull back some of the more dramatic decisions," Caulkins said of the Obama board. "I think all of us—management and union—would agree we want a less political agency."

This is all good news for job-creators and workplace freedom, but it is fortunate that NLRB Chairman Philip Miscimarra was able to act with such alacrity. Miscimarra’s term ended Friday, leaving the Board in a 2 – 2 tie with no acting Chairman named and no replacement in the Senate confirmation pipeline.

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Obama accomplishments? Name

Obama accomplishments? Name one.

Obama's Horrendous Accomplishments

A few days before he was elected in 2008, Obama promised to "fundamentally transform America." What he didn't say was that he intended to "fundamentally transform" it from a free market-based Constitutional republic into a third-world Marxist dictatorship. In many respects he accomplished that, with regulatory overreach, legislation by executive order, ordering the DOJ to stand down on criminal investigations of political cronies, Operation Choke Point, Operation Fast and Furious, and many other dictatorial schemes. If it weren't for President Trump undoing these many accomplishments, we would be chafing under a full-fledged Communist dictatorship today.

I just named many Obama accomplishments. Naming one GOOD thing he's done is quite a bit more difficult. I can't think of any.

Good Point!

Good point, we should have put "accomplishments" in quotes since Obama's NLRB "accomplishments" were the same sort of "accomplishment" that Obamacare was. Change made and thanks for pointing out the oversight.