Posts tagged Administrative Procedure Act
Labor Department would ignore law to change overtime rules
November 16, 2023 // The DOL’s preamble to its proposals repeats as if a mantra its reliance upon “the authority that the FLSA grants to the Secretary to define and delimit the EAP exemption.” But in its repetitions of the define-and-delimit mantra, the DOL omits the part where the FLSA says the terms of the exemption are to be defined and delimited “by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of Title 5.” Those provisions, known as the Administrative Procedure Act, require regulations to be adopted through a procedure that gives the public a chance to submit comments on a proposed regulation and requires the agency to respond to significant comments. The DOL proposal to make future increases in the salary levels automatic violates the Administrative Procedure Act’s requirements.
Biden ESG rule survives challenge from 25 red states
September 24, 2023 // Kacsmaryk’s 14-page ruling rejects the red states’ argument that the environmental and sustainable governance (ESG) rule violates the Administrative Procedure Act and the Employment Retirement Income Security Act, which regulates retirement plans. He wrote that the Biden administration rule still complies with those statutes, because it prioritizes financial considerations over environmental ones and thus has no “overarching regulatory bias in favor of ESG strategies.” “[W]hile the Court is not unsympathetic to Plaintiffs’ concerns over ESG investing trends, it need not condone ESG investing generally or ultimately agree with the Rule to reach this conclusion,” he wrote.
NJ Medieval Times Employees Appeal to National Labor Relations Board in Ongoing Joust with Union Officials
September 21, 2023 // he Request for Review notes that AGVA union officials were “secretive, self-interested, and divisive,” and “regularly advocated that the [Medieval Times] employees go on strike, something that had no support among the unit employees.” After waiting out the statutory one-year bar on union elections that follows a union’s certification, Morley filed the petition requesting a union decertification vote. According to the Request for Review, instead of processing the petition as NLRB rules dictate, NLRB Region 22 issued a complaint against the employer and dismissed Morley’s petition based on unproven “blocking charges” AGVA union officials filed against Medieval Times management. The Request for Review argues that the hasty dismissal violated NLRB election rules, the Administrative Procedure Act, and well-established NLRB precedent requiring a hearing to demonstrate whether union allegations of employer misconduct actually caused employee discontent with the union. “None of the alleged unfair labor practice allegations…concern the Employees’ collection of the decertification signatures or the Employer’s domination of the Union. Thus…an election should be held and the votes immediately counted,” the Request for Review contends. “Even if the Board determined the allegations warranted consideration under [NLRB rules], its plain terms prohibit dismissing a petition prior to an election.”
Stymied Su Nomination Mirrors Slack Labor Department Rulemaking
May 24, 2023 // “By freezing your regulatory agenda, you are in essence avoiding the embarrassment or the explanation of something you might do that is controversial and could have a negative impact on your nomination,” said Patrick Pizzella, a former deputy secretary of labor